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MRA Thought of the Day – What is a Valid Subpoena?

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Nilda Tamburello RHIA, Vice President of Release Of Information

Nilda Tamburello RHIA, Vice President of Release Of Information

What is a Valid Subpoena?

  • States the name of the court and the title of the action and is addressed to the Keeper of Records.
  • Issued and signed by a Clerk of Court, Justice of the Peace or Notary Public.
  • Subpoenas from state courts outside the state of Massachusetts have no legal effect in Massachusetts and are considered invalid.
  • The subpoena must be accurate as to names, hospital and patient and must be signed.
  • Must be served by a constable or other designated individual and not sent via mail.
  • Must state that record copies will be accepted in lieu of appearing. If this is not stated on the subpoena, the attorney will need to be contacted to confirm whether he/she will accept copies rather than requiring that the Keeper of the Records appear in person.
  • The healthcare facility must receive “Satisfactory Assurance” that the individual whose records are at issue has received specific notice of the request for records and has been given the opportunity to object or that reasonable efforts have been made by the facility to provide notice to the individual. If the patient’s authorization is attached there is no need for a “Statement of Assurance” from the attorney.
  • Both billable and non-billable subpoenas may be accompanied by a witness fee (cash or check) in varying amounts.

Federal Subpoenas:

  • In criminal proceedings, a Federal Subpoena may be served anywhere within the United States.
  • In civil proceedings, a Federal Subpoena may be considered valid if it is within 100 miles.
  • The subpoena must be accurate as to names, hospital and patient and must list the patient as a party in the case caption.
  • Must be served by a constable or other designated individual and not sent via mail.
  • A subpoena cannot be honored unless the healthcare facility has received “Satisfactory Assurance” that the individual whose records are at issue has received specific notice of the request for records and has been given the opportunity to object or that reasonable efforts have been made by the facility to provide notice to the individual. If the patient’s authorization is attached there is no need for a “Statement of Assurance” from the attorney.

As a side bar:

If the information contained in the patient’s medical record may be considered privileged under Massachusetts General Laws: C.111 Sections 70. 70E, 70F & 119; C.111B Section 11; C.112 Sections 135A, 12A; C.214, Section 1B; C.233 Sections 20B and 20K., then the patient’s written informed consent or a proper judicial order is needed. A subpoena may constitute a violation of the Privacy Standards of the Health Insurance Portability and Accountability Act and/or Massachusetts General Laws.

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