I’ve Received a Subpoena from the Feds . . . Now What? Part 2

Obviously today is not Thursday . . . but I am back today with the follow-up post.

In Part 1, I discussed the initial steps if you get a subpoena from a government agency.  Today, what are your obligations if you received a subpoena?

  1. First, let your attorney (OK, if you did not get that your should have hired an attorney by now, go back and read Part I again, especially #1) determine if you were properly served with the subpoena, who is the actual target of the subpoena and if your company is the ultimate target or you just have documents that the investigator is looking for in a case against another target. If your attorney can determine there is a problem with the subpoena or with service of the subpoena, the attorney can take actions to attempt to quash the subpoena.  However, in most cases the government has the authority to request these documents.
  2. If the subpoena was properly served, it is likely that you will have to comply with the subpoena, so now is the time to start gathering the documents requested by the subpoena.  With your attorney, make a plan for how to reply to the subpoena. Depending on the governmental agency that issued the subpoena and the nature of the investigation, this may or may not implicate all of your medical records or only a subset of your medical records.  For example, if it is the Medicaid Fraud Control Unit in your state that is requesting records, then you should only be concerned with the records of your clients who are on Medicaid. And now is the time to have the plan in place to control how the documents are released.  If the records are going to be voluminous, then your attorney should be discussing the possible staggered disclosure of the documents with the investigator.
  3. While these subpoenas for records are likely covered under an exception to HIPAA and there is no bar to disclosure, it is a good practice to have a Business Associate Agreement with your lawyer so that any inadvertent releases of documents by the attorney do not become your issue.  There have been some changes to Business Associate relationships as a result of HITECH, so consult with your attorney regarding the requirements.
  4. Unless required by the subpoena, DO NOT send original records to the investigator.  Always send copies that have been collated and Bates-stamped (a numbering protocol so that an individual document can be identified by a single page number). If you do a little extra work to prepare the records in an organized fashion, then the investigator is much less likely to requests the originals. And you should have a policy regarding original documents and you should be following that procedure, too.

In Part III on Monday, I will discuss what happens after you produce the documents and what to do if the investigator shows up on your doorstep with a search warrant.

Marc

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