View the Formal Ethics Opinion in Full Here
On July 25, 2014, the North Carolina State Bar adopted 2014 Formal Ethics Opinion 4 entitled, “Serving Subpoenas on Health Care Providers Covered by HIPPA.” This opinion allows a lawyer to send a subpoena for medical records to an entity covered by the Health Insurance Portability and Accountability Act of 1996 (HIPPA) without providing the necessary assurances required by 45 C.F.R. §164.512(e)(ii) that would permit the entity to comply with the subpoena.
The law states that entities covered by HIPPA may disclose protected health information in a judicial or administrative proceeding if the request for information is in response to a court or administrative tribunal order, and potentially in response to a subpoena or other lawful process if certain assurances regarding notice to the individual or a protective order are provided. Specifically, the protected person must be given notice of the request for information, and such notice to the protected person must be provided to the entity; or the entity may give notice to the protected person itself.
This opinion makes it so that as long as the subpoena complies with the Rules of Civil Procedure, a lawyer may send a subpoena to an entity covered by HIPPA and demand compliance without providing the assurances set out in the law. The State Bar notes that as a matter of professional courtesy, a lawyer may include a letter with the subpoena notifying the entity that the information may be subject to state and federal privacy laws and that they may delay compliance with the subpoena for a reasonable time to comply with the applicable privacy laws. It also may be in the client’s best interest to seek compliance to avoid objections to the disclosure of the information.
If the health care provider receiving the subpoena is a client of the lawyer’s firm in an unrelated matter, and the client seeking the medical records and the provider/client have the same interest in seeing the records produced, with the informed consent of both parties, the lawyer may provide advice to the provider/client as to the privacy rules and give them a reasonable time to comply. Also, if the health care provider receiving the subpoena is a client of the lawyer’s firm in an unrelated matter, and a conflict arises, the lawyer may not represent either the client seeking the records of the provider/client relating to the enforcement of the subpoena unless both parties give informed consent confirmed in writing.