Subpoenas for Dental Records

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) permits covered dental practices to disclose patient information in compliance with, and as limited by, the relevant requirements of:

• A court order or court-ordered warrant
• A subpoena or summons issued by a judicial officer
• A grand jury subpoena
• Certain administrative subpoenas

  Dental practices are considered covered entities if they transmit electronic “covered transactions,” such as electronic claims, to dental plans. It’s also possible to become a covered entity by contracting with an outside service, such as a clearinghouse, to submit electronic covered transactions on behalf of the dental practice.

Since HIPAA does not supersede more stringent state law that is not contrary to HIPAA, covered dental practices must also check state law requirements before releasing patient information in response to a subpoena. It’s a good idea for dentists who receive a subpoena for dental records to consult a qualified attorney before responding.

There are two types of subpoenas:

1. A “subpoena duces tecum” is an order for the production of the dental records specified in the subpoena. In some cases, a subpoena duces tecum also requires the owner of the records to appear at the specified time and location.
   • Dentists who receive this type of subpoena should consult with their attorney since it’s possible that their state may not actually require a personal appearance or a person designated as the custodian of records may appear in lieu of the dentist. Check if a copy service may be designated to copy the records which would obviate the requirement for the personal appearance of the dentist or records custodian with the records. In all instances, check with the attorney to make sure the requested disclosure is permitted by both HIPAA and under state law, and to obtain a qualified protective order, if appropriate.
2. A “subpoena ad testificandum” is a written order that demands that the dentist appear and give testimony.
   • This type of subpoena may require testimony at trial, at a court hearing, or by deposition. Consult with your attorney before responding.

The dental practice must provide the information in the form and format requested by the patient or subpoena if the information is readily producible in that way. Requests for large volumes of patient data may require the use of electronic data media, such as flash drives, disks, etc. In some cases, it may be permissible to issue an invoice for a reasonable, cost-based fee for providing electronic copies.

It’s recommended that dentists provide the original record and maintain a copy in their own files until the originals are returned. Alternatively, request delivery of a copy of your records, particularly if the patient is undergoing continuing treatment. This reduces the risk that portions of the original records be lost or misplaced in transit. Never release the only copy of any documents, records or radiographs. Having a duplicate set of any materials provided in response to the subpoena will make it easier to confirm that all of the records that were submitted are returned. They also provide the practice with a record of what was submitted to the court if that’s ever questioned.

If you determine that a requested record is misfiled or cannot be located within the practice, report the result of the unsuccessful search to the requesting authorities as soon as possible.

Subpoenas typically specify a date by which the requested records must be produced. In cases when the requested records are for patients who are no longer active in the practice, it’s possible that the records may be stored off-site or in an alternative format, such as microfiche. According to the American Dental Association, inactive dental patients of record are individuals who had become patients of record and have not received any dental service(s) by the dentist in the past twenty-four (24) months (ADA policy on Active and Inactive Dental Patients of Record [Trans.1991:621; 2012:441]).

Searching these records for the requested information can be laborious and time-consuming. If you determine that you need more time to provide the requested information, immediately ask your attorney to contact the requesting official to explain the situation and request an extension.

A dentist who refuses to comply with a final, valid, properly served warrant, court order, subpoena or administrative request for records should appear in court to contest the disclosure and explain the basis for refusing before any sanctions for failure to comply are imposed. Refusing to comply with a subpoena is a very serious matter and should not be done unless there are truly extraordinary circumstances. Should you ever consider refusing to comply with a subpoena, consult your attorney immediately since local court procedures could result in you being found in contempt of court for failing to comply.

The American Dental Association maintains this policy regarding victim identification:

Dental Radiographs for Victim Identification (Trans.2003:364; 2012:442)} Resolved, that the ADA promote to practicing dentists the importance of providing, as permitted by law, radiographs, images and records on patients of record that are requested by a legally authorized entity for victim identification and which will be returned to the dentist when no longer needed, and be it further resolved, that copies of these records should be retained by dentists as required by law.

Resources

• Subpoenas for Forensic Radiographs
• Articles from the ADA Guidelines for Practice Success™ (GPS™) module on Managing the Regulatory Environment:
  • The Privacy Rule
  • ADA Tip Sheet on Certain Provisions of the HIPAA Privacy Rule [PDF]