Subpoenas
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It can be troubling when you receive a subpoena. Here, we go through all you need to know about these requests, and how to handle them at Thriveworks.
It can be troubling when you receive a subpoena. Here, we go through all you need to know about these requests, and how to handle them at Thriveworks.
Still have a question? Submit a ticket here and ask our attorneys. Make sure to ask your RCD first.
What exactly is a subpoena?
What exactly is a subpoena?
A subpoena is a court document, issued by an attorney, demanding a request from a party. There are two types of subpoenas you may receive: (1) to testify or be deposed; and (2) a request for medical records (the fancy lawyer-Latin term is duces tecum). As a private citizen, you are compelled by the court to comply. As a healthcare provider, there will be a bit more involved.
The subpoena I received is not from my client's attorney, is it still valid?
The subpoena I received is not from my client's attorney, is it still valid?
Yes, and generally subpoenas do come from the opposing party's attorney. You client has the ability to just ask for their own record, then do with it what they'd like, and they or their attorney can ask you to testify. It is the party that has no connection with you that needs to subpoena you.
What do I do if I receive a subpoena for medical records?
What do I do if I receive a subpoena for medical records?
Take the following steps:
(1) You’ll want to see if you have a Release of Information (ROI) for the client(s) on file. Note: it is not your job to get one from the client, unless you think it’ll be easy to get.
(2) Let your client know you have received the subpoena.
(3) Immediately email clinicdirector@thriveworks.com. They will provide you with any assistance you might need and bring in the Legal Team if needed. If there is no ROI, the Legal Team will assist in reaching out to the subpoenaing attorney to have one obtained.
(4) Make sure to upload a copy of the subpoena to the client’s record.
(5) Follow the process described on the Medical Records Request page.
What do I do if I receive a subpoena to testify or be deposed?
What do I do if I receive a subpoena to testify or be deposed?
(1) You’ll want to see if you have a Release of Information (ROI) for that client(s) on file. Note: it is not your job to get one from the client, unless you think it’ll be easy to get.
(2) Let your client know you have received the subpoena.
(3) Immediately email clinicdirector@thriveworks.com. They will provide you with any assistance you might need and bring in the Legal Team if needed. If there is no ROI, the Legal Team will assist in reaching out to the subpoenaing attorney to have one obtained.
(4) Note that if you are being asked to testify, or to be deposed, if are comfortable testifying, you can submit this form to request an invoice for your court appearance, mileage to and from the court house, and your PTO rate for time actually spent. If you must cancel or not take client sessions, we need to ask for the reimbursement for your time. Sometimes the Legal Team will negotiate payment with the subpoenaing attorney.
(5) If the subpoenaing attorney does not agree to pay the self-pay rate for your court appearance, or if you do not feel comfortable testifying, then your RCD can seek the Legal Team’s assistance in attempting to release you from having to testify. This is not guaranteed, and time is of the essence.
(6) You should know, that if an attorney contacts you, even if they have an ROI from your client, you are not obligated to respond to that attorney. Instead, you should email clinicdirector@thriveworks.com and ask for your RCD to contact the Legal Team for assistance in responding to the attorney.
(7) Also, if you testify for any clinical work performed at Thriveworks, under no circumstance should you ever provide any clinical opinions, recommendations, or weigh in on any potential issue, and may only provide objective facts that are also documented in the client’s medical record. If it is not documented, it is like it did not happen so testifying about it could potentially open up to liability. Thriveworks does not offer the service of expert testimony or expert opinions.
What do I do if I get a medical records request?
What do I do if I get a medical records request?
A client is entitled to a copy of their record within 30 days of the request under HIPAA, as well as many state laws. Some states even require within 15 days. If you get a request from your client, ask them to complete one of our ROIs anyway, just so you can document the request. Then follow the process found on the Medical Records Request page.
If someone other than your client requests the client’s record, they cannot be released without you reaching out to the client first to be made aware of the request and agree to is, as well as fill out the ROI. If you get the ROI, then follow the process on the Medical Records Request page, and they can get a copy of the record to the requestor.
What if my client is a couple or family unit?
What if my client is a couple or family unit?
No matter who you named as the “primary” client on the record, if you are seeing a couple or family, the entire unit is the client. Therefore, every member of a couple or family client unit must provide written authorization to release the record. Each person is entitled to their own record, but not to anyone else’s. This includes family therapy that includes participants who are minors (under age 18), where a copy of the custody agreement is required to determine who has the authorization to release such medical records (see section on Minors).
What is therapist-client or doctor-client privilege ?
What is therapist-client or doctor-client privilege ?
Most states have enacted laws that address confidentiality and privilege communications between a therapist and their client. The laws generally adopt the same or similar language to attorney-client privilege or it falls within the court's rules of evidence. This privilege technically belongs to the client, and the client (or their attorney) has to claim it. You may claim it on behalf of your client, but they should want you to claim it first. There are a few exceptions:
Consulting with your supervisors or administration;
Written consent of the client (ROI);
Your client brings an action against you either to the licensure board or to the court;
Otherwise required by law.
This is where when you get subpoenaed you client's attorney can file a motion to quash.
What if my client wants to bring a support person to session who is not my client?
What if my client wants to bring a support person to session who is not my client?
If a client ever asks you to have someone else attend their session to facilitate or otherwise support their therapy services, the clinician must obtain a Non-Client Authorization for Disclosure of Records. This form provides that the person who is joining the client’s session is not the client, and therefore has no right to the record nor do they need to supply a separate ROI for any release of records.
How do I get reimbursed for my time for testifying or being deposed?
How do I get reimbursed for my time for testifying or being deposed?
Generally, we inform the party who has subpoenaed a clinician of the requirement to pay for your time prior to the date of court or deposition. You will be reimbursed at your PTO rate for actual time spent. To request the payment, please fill out this form.
Documents Related to this Section
Documents Related to this Section
Support Person ROI.docxPage updated
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