© 2008 Dinsmore & Shohl LLP Presented by: Charles M. Johnson, Esq. October 30, 2008 Responding to Subpoenas, Court Orders and Search Warrants

© 2008 Dinsmore & Shohl LLP Your response to Subpoenas, Court Orders and Search Warrants is Critical for Several Reasons …

© 2008 Dinsmore & Shohl LLP Introduction  Minimize the risks associated with improper disclosure of medical records-- recent litigation in West Virginia has resulted in significant awards for invasion of privacy related to medical records  Providers face significant penalties and sanctions from governmental agencies for improper disclosure

© 2008 Dinsmore & Shohl LLP Other reasons to exercise caution:  Ethical duties of professionals  There are recognized exceptions in which providing medical records and response to subpoenas is improper

© 2008 Dinsmore & Shohl LLP Types of subpoenas:  Document Subpoenas (a subpoena duces tecum)  Witness Subpoenas (regular subpoena) There are two general types of subpoenas

© 2008 Dinsmore & Shohl LLP How can you tell what type of subpoena you have received?  These two types of subpoenas may have traditionally appeared differently  The most common current practice is to utilize a single form with boxes to be checked to indicate whether production of documents or appearance of a witness to testify (or both) is requested

© 2008 Dinsmore & Shohl LLP Why does it matter?  The type of subpoena you receive determines what responses are acceptable

© 2008 Dinsmore & Shohl LLP  Since a subpoena may have simply been requested by counsel in a proceeding, there is no guarantee that considerations as to protecting the confidentiality of requested information have been properly weighed against the need for disclosure in an impartial manner or that other grounds for relief from or modification of the request have been considered

© 2008 Dinsmore & Shohl LLP What records should not be disclosed?  Exceptions for disclosure of mental health records, substance abuse records and AIDS- related records prohibit disclosure pursuant to a subpoena  These records require that either an appropriate release or a court order first be obtained in order to access this information.

© 2008 Dinsmore & Shohl LLP Ignoring the subpoena?  You may not simply ignore the subpoena even if you believe you have a valid excuse for not responding  Failure to adhere to the subpoena or to properly respond as outlined below may subject the person receiving the subpoena to penalties for contempt of court

© 2008 Dinsmore & Shohl LLP  First determine whether the subpoena has been properly issued and served in accordance with the requirements of the Rules of Civil or Criminal procedure.  Examine the subpoena to determine if it meets the rules, such as tendering the fees for one day’s attendance and mileage allowed by law (unless the person being subpoenaed is a state official or employee). Responding to Subpoenas

© 2008 Dinsmore & Shohl LLP Responding to Subpoenas  If the subpoena was properly issued and served, then you have a duty to respond unless you have an adequate excuse  It is the responsibility of the person receiving the subpoena to either respond appropriately or to demonstrate a legally cognizable excuse for failing to respond to the subpoena.

© 2008 Dinsmore & Shohl LLP Duty to Respond  Verify that it has been properly served  Examine the subpoena for defects  Pursue one of the following acceptable methods of responding to a subpoena

© 2008 Dinsmore & Shohl LLP Subpoena issued by a State court or administrative agency :  Cannot compel travel outside of the state  Should not be onerous  No intent to harass or intimidate  Determine if validly issued and served

© 2008 Dinsmore & Shohl LLP How far should you go?  Subpoenas issued by a State Court in West Virginia requiring you to appear to testify normally may require you to travel anywhere within West Virginia to attend a trial or hearing, but not beyond the borders of the State.

© 2008 Dinsmore & Shohl LLP Depositions:  Subpoenas for depositions in West Virginia are limited to an appearance in the county in which he or she resides, is employed, transacts business in person or as otherwise established by court order (exceptions for parties in the case).

© 2008 Dinsmore & Shohl LLP In federal courts…  In civil proceedings, one can be compelled in federal court to attend a hearing if it is within 100 miles of the place of service of the subpoena  In criminal proceedings in federal court, one can be compelled to attend a hearing anywhere in the United States

© 2008 Dinsmore & Shohl LLP Acceptable Responses to Subpoenas  objecting to or contesting the subpoena  obtaining an excuse from the person who issued the subpoena  entering into a consent order entered by the court addressing these issues  compliance with the subpoena

© 2008 Dinsmore & Shohl LLP Obtaining an Excuse from a Subpoena  It is perfectly acceptable to request an excuse from responding to the subpoena in order to avoid a legal requirement to comply.  It is a good idea for the subject of the subpoena to have any excuse confirmed in writing by the person issuing the subpoena

© 2008 Dinsmore & Shohl LLP  Even if the person receiving a subpoena feels they have a valid excuse in order to not respond to a subpoena, unless the person issuing the subpoena agrees and grants an excuse from the duty to respond, then a more formal response must be made in order to avoid being held in contempt Obtaining an Excuse from a Subpoena:

© 2008 Dinsmore & Shohl LLP  It may be acceptable for hospital officials to verify certain records and produce a copy of them in lieu of appearing to authenticate the records  It is improper in the case of medical records involving mental health, substance abuse, and AIDS-related records to do so unless a release or court order is obtained

© 2008 Dinsmore & Shohl LLP  Objections to the procedure or substantive requirements of a subpoena can be set forth in motions for protective orders or a motion to quash the subpoena  Generally, a response must be made within 14 days of the service of the subpoena or before the time of compliance set forth in the subpoena if this time period is less than 14 days  If objections are made, the person requesting the information may move to compel production of the requested documents or compel testimony by order of the court.

© 2008 Dinsmore & Shohl LLP Compliance with the Subpoena Duces Tecum  Determine what specific documents are requested  Determine if those particular documents are in the control, custody or possession of the person receiving the subpoena  Determine if the requested documents are confidential mental health, substance abuse or AIDS records  Determine if there are other legal objections to production of such records

© 2008 Dinsmore & Shohl LLP Reasonableness:  The issuer is required to take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena  If a subpoena is unreasonable, the court may impose sanctions, including but not limited to lost earnings and a reasonable attorney's fee

© 2008 Dinsmore & Shohl LLP Motion to Quash  A subpoena fails to allow reasonable time for compliance  The subpoena requires a person to travel for a deposition outside the county in which that person resides or was employed or transacts business in person or at a place fixed by order of the court

© 2008 Dinsmore & Shohl LLP  The subpoena requires disclosure of privileged or other protected matter and no exception or waiver applies  The subpoena subjects the person to undue burden for compliance  The subpoena requests disclosure of a trade secret or other confidential research, development or commercial information  The subpoena requires disclosure of an un- retained expert's opinion or information from an expert study not made at the request of any party

© 2008 Dinsmore & Shohl LLP  The court may determine to protect a person subject to a subpoena or quash or modify the subpoena  The court may order appearance or production of document only upon specific conditions

© 2008 Dinsmore & Shohl LLP  Produce documents in the form you normally keep them  Organize documents to respond to categories in request  Privilege or other protection claims must be expressly made, and supported by a description sufficient to enable the demanding party to contest the claim

© 2008 Dinsmore & Shohl LLP  Once it has been determined that the requested documents are confidential and not subject to disclosure by bare subpoena, a party must either appear and object to the disclosure, file a formal objection to the disclosure or file a motion to quash  Exceptions include where a written release is obtained or unless a consent order protecting the interests of all concerned is entered into by the court

© 2008 Dinsmore & Shohl LLP  A response to a subpoena duces tecum may be made by appearing at the time and place specified with the original records (copies may be retained to enable ongoing treatment).  Original medical records are required in response to a subpoena duces tecum unless the subpoena or the court states otherwise

© 2008 Dinsmore & Shohl LLP  Obtain a ruling from the bench by the presiding judge (or a written order regarding the same)  In camera inspection of mental health records  In this case, the Judge weighs the interests in disclosure against the interests in protecting the confidentiality of such information.  During such in camera inspections, the court may also inquire of the party producing the records

© 2008 Dinsmore & Shohl LLP  Upon the issuance of a decision by the court compelling disclosure of the records (or testimony as the case may be), the person receiving the subpoena is required to respond and provide the information

© 2008 Dinsmore & Shohl LLP Compliance with a Witness Subpoena  The procedure for complying with a bare subpoena to appear and testify is similar to complying with the subpoena to produce documents except that no review of documents is required  A careful review of the testimony to be elicited should be made. Since this will not always be readily apparent, it may be necessary for the subject of the subpoena to consult with counsel

© 2008 Dinsmore & Shohl LLP  A subpoena for appearance of a witness does not enable the person to disclose confidential information contained in mental health, substance abuse and AIDS records unless compelled to do so by the court.  Absent a written release covering all aspects of the testimony or a court order compelling such testimony, the person receiving such subpoena should refrain from disclosure

© 2008 Dinsmore & Shohl LLP During a Deposition  During a deposition the deponent may decide to refrain from responding based upon specific objections if the subject matter is privileged or  The party taking the deposition may elect to withdraw this portion of the subpoena or otherwise excuse the same or obtain a ruling of the court

© 2008 Dinsmore & Shohl LLP Time Limits  As set forth above, objections to subpoenas or motions to quash must be filed either within 14 days of the date of service of the subpoena or before compliance if requested sooner than 14 days.  Failure to obtain a specific excuse from the person issuing the subpoena (it is a good idea to obtain this in writing), a written release, a consent order or other acceptable means of response require that a formal objection for motion to quash be made within the appropriate time frames in order to protect the confidentiality of this information.

© 2008 Dinsmore & Shohl LLP Consent Orders  In certain circumstances, counsel for the person receiving the subpoena may prefer to negotiate a consent order if it is apparent that disclosure of such records will likely be mandated by the court, and there are no compelling objections to do so upon issuance of a court order.  These court orders must be carefully drafted in order to address the statutory requirements for disclosure, and are ineffective if not signed by all parties which have a right to object to the same and entered by the court

© 2008 Dinsmore & Shohl LLP Penalties and Sanctions  Contempt of court  Civil penalties  Incarceration

© 2008 Dinsmore & Shohl LLP  Remember that the presiding judge may be equally frustrated with your failure to attend or produce documents as you were in responding to the request. However only the judge has the authority to compel or excuse compliance, and to sanction those that fail to follow these procedures

© 2008 Dinsmore & Shohl LLP Search Warrants and Investigations  Warrant may be issued in order to search for and seize certain property or persons  Failure to respond appropriately to a search warrant can result in criminal charges being filed for the making of false statements or obstruction of justice

© 2008 Dinsmore & Shohl LLP  Upon receipt of a search warrant, that either a law enforcement officer or a prosecutor has sworn to a magistrate or a judge of the Circuit Court in the county in which the person or property is located that probable cause exists that a crime has occurred and that the execution search warrant will elicit property related to the alleged criminal activity or persons alleged to have committed the alleged crime  Contact your attorney

© 2008 Dinsmore & Shohl LLP  Property that constitutes evidence of the commission of a criminal offense  Contraband, the fruits of crime, or property otherwise involved in the commission of a crime  Property designed or intended for use as the means in committing a criminal offense  Persons for which probable cause exists that have committed a criminal act

© 2008 Dinsmore & Shohl LLP  Persons receiving a search warrant may not interfere in the execution of the search warrant  But such persons have certain rights, including a right to receive a copy of the warrant, a receipt for the property taken, and upon execution of the warrant, an inventory of property taken which was sworn in front of the officer issuing the warrant

© 2008 Dinsmore & Shohl LLP  Assure that the seizure does not exceed the proper bounds of the search warrant while avoiding any allegations as to obstruction of justice  Warrants are for search and seizure of property or persons, and are not intended to elicit statements or compel interviews of those present at the scene of the search

© 2008 Dinsmore & Shohl LLP  Make sure no false statements are made during any interchanges regarding the search warrant  Employees and staff are not compelled to discuss any issues as they relate to the seizure  An informed decision should be made after consulting with counsel as to the extent of any such cooperation

© 2008 Dinsmore & Shohl LLP  Prepare in advance for responding to any such investigations by designating someone familiar with the providers’ compliance plans, record keeping, and policies as responsible for working with counsel in order to respond to any search warrants which are received

© 2008 Dinsmore & Shohl LLP Law Enforcement Personnel and Investigations  Obtain a written consent  Absent a consent, West Virginia laws contain only limited exceptions for disclosure of this information to law enforcement personnel for licensed professional counselors and social workers. There is an exception for these professionals if the patient contemplates committing a crime or an act harmful to the patient or others. See, e.g. W. Va. Code § and

© 2008 Dinsmore & Shohl LLP  Social workers have an exception which allows release of information to the appropriate investigatory agency in the event the patient is a minor and has been the subject of abuse or the victim of a crime. See, W. Va. Code §  West Virginia has specific statutes dealing with the investigation of suspected abuse of children and adults by child protective services and adult protective services respectively.

© 2008 Dinsmore & Shohl LLP  Disclosure under these statutes should be narrowly confined to those having appropriate authority to investigate such alleged abuse and neglect situations. See, W. Va. Code §9-6-1, et seq. and 49-6D-1, et seq  HIPAA has specific rules relating to disclosure of protected health information to law enforcement officials

© 2008 Dinsmore & Shohl LLP  The development of an effective compliance plan is crucial to avoiding criminal sanctions against entities and institutions and as a result may make the difference between the survival or closure of the provider or facility

© 2008 Dinsmore & Shohl LLP Mr. Johnson is a member of Dinsmore & Shohl LLP. The primary focus of Mr. Johnson’s practice involves health care matters involving hospitals, long-term care and assisted living facilities, physicians, health care providers, and other health care providers and health care related businesses, as well as corporate work and civil litigation. For additional information, you may call Mr. Johnson at (304) , him at or visit the Dinsmore & Shohl LLP website at Responding to Subpoenas