The Practice Receives a Medical Records Subpoena: Now What?

Medical, dental, and other healthcare professionals who receive subpoenas or court orders need to proceed with caution before releasing medical information to third parties.  Just because your office has received a request from a law enforcement officer or an attorney with an official document doesn’t necessarily mean that HIPAA and other patient privacy laws have been waived.  Most importantly you need to carefully read the record request and communicate with your healthcare attorney prior to responding.  Records requests often come in the form of a deposition notice.  Despite the language of the notice, it may not be necessary for you or your records custodian to disrupt their day to appear at an actual deposition. Communication with your Washington D.C. health care attorney or Washington D.C. business attorney and making the request can clarify what you need to do in a given situation.

The following are some of the common types of medical, dental or other healthcare records requests that a healthcare provider might receive, along with some guidelines on to how to handle each.

Court Orders – It’s important to recognize that not all subpoenas originate from the Colorado courts. However, healthcare providers must comply with requests for protected medical information from the courts. If you receive a Maryland or District of Columbia court order, you must be careful not to disclose any information that is not specifically demanded in the document. You are not required to disclose to the patient that you have been ordered to release his or her medical records. However, this kind of notification is not prohibited.

Criminal Subpoenas and Search Warrants – Investigative subpoenas and warrants create a number of legal difficulties for healthcare providers. If you are approached with either of these types of documents by law enforcement, you should immediately contact your attorney before complying.

Civil Subpoenas, Deposition Notices and Discovery Requests – Oftentimes attorneys will submit subpoenas, deposition notices or other discovery requests without an accompanying Court order. Not all subpoenas are requests from healthcare providers, and outside of the medical community, these types of requests often stand by themselves. However, as a healthcare provider, you should first verify that the court in which the matter is being brought is one of competent jurisdiction. In addition, the subpoena, deposition notice or other discovery request should be signed by one of the party’s attorneys and notarized. When you receive the subpoena, notice or request, before responding to it, you should notify the patient to inform him or her of the request. Before releasing any records, you should be satisfied that your patient is aware of the subpoena or notice. Often in civil lawsuits, a the patients’ attorney wishes to object to disclosing certain records. By notifying the patient, you give the patient’s attorney time to make their objections to the court and can help protect yourself against claims against you for improper disclosure.

Remember, the key to avoid legal and ethical complications is to proceed with caution. Most situations involving requests for medical records allow time to produce the requested information. Unless a Court has issued an order, it’s reasonable to ask for additional time before complying if necessary. If you have any doubts as to whether or not you should comply with the subpoena, warrant, or discovery request, seek the counsel of an experienced Washington DC health care attorney or Washington DC business attorney specializing in health care.

Understanding the Challenges of Starting Your Own Business

Washington D.C. business lawyers receive variations of the following call or email frequently.

“Mr. Strisik, I have been working for Acme Widgets for 5 years. I am tired of working for someone else and want to launch an idea I have had. Can you please help me draft the paperwork to get started? Where do we begin?”

Here are the most common issues I advise my clients they must work through prior to moving forward.

1. Motivation – to be clear, I ask my clients whether they are at a career dead end and are acting out of desperation. Starting a new business should not be the solution to everything else not working. Rather, the new business should be the result of fulfillment of long-term goals, aspirations and planning.

2. Skill sets – at the beginning, entrepreneurs must wear numerous hats. They will be in charge of finance, accounting, human resources, sales and marketing, secretarial/administrative and technical support. Washington D.C. business lawyer meet hundreds of self-starters who are not always meant to undertake these varied roles.

3. Personality – most people know whether they are an introvert or extrovert. What they do not know, however, is how “big picture” and “detail oriented” they truly are until they launch into business ownership. The question I ask my clients is how they will plan the 24 hours in their day when nobody else is planning it for them. Accountability is a key to being a self-starter.

4. Professional goals – a 20 year veteran dentist came to me to launch her career in practice consulting. She wanted to spend more time with her children, who were all in grade school. About a year down the path, she had nearly forgotten to align her professional goals with the personal goals she set out with.

5. Financial goals – numbers, numbers, numbers. What look like good numbers to one person may look like poor numbers to another. I always ask my clients to project 1, 2 and 5 years down the line of financials in order to determine whether their financial goals will be met.

6. Financial capacity – a common trap for new business owners is capitalization of their business. Given that it could take years to turn a true profit, there must be clarity about how much can comfortably be invested to reach that milestone. It costs money to make money. The question is how much it will take before one must stop the bleeding.

7. Decision-making ability – the transition from corporate America to small business ownership means difficult decisions will no longer be made for you – but by you. I ask my clients whether they can often take the emotion out of a difficult situation in order to make a decision that is in the best interest of the business (rather than in the best interest of the individual).

Contact Strisik Law today if you are planning to start a business in the Washington, D.C. metropolitan area. At the outset of our conversations, it will be useful for me to give practical legal advice that will lead you towards financial success. Referring to the above checklist early and often will help us determine whether you are ready to proceed.

Problem Employees and the Employment Handbook

The only constant in life is change.  In employment, problems require change.

Problem employees can will ruin a business.

Employment issues must be dealt with using clear and concise policies, procedures and guidelines.  There is no better time than today to evaluate your business employment manual/handbook to determine whether your employees are provided with a “road map” of their work environment and your expectations of their time at work.

Employment policies and guidelines provide business owners’ with support for the employment actions they may take.
Employment lawyers create employee manuals / handbooks that are specific to your individual practice needs.   There is no one-size-fits-all solution.

Your manual may cover as many or as few issues as you choose, but should always include the following key provisions:

Equal opportunity statement – This states that race, creed, color, religi0n, gender, sexual orientation, national origin, disability, age or covered veteran status will not affect employment decisions in any way.

Definition of the work schedule – This indicates that all employees are to be at their assigned work areas performing their assigned tasks at a certain time and in a certain manner.

Compensation & Benefits – This will classify an employee as exempt or non-exempt; details when the employee can expect to be paid, how wage increases are handled and whether they are eligible for overtime; and what type of benefits your business provides (health, dental, vision, 401k, vacation, etc.).

Codes of Conduct – This section clarifies expectations regarding employee dress, use of company equipment, punctuality, use of tobacco, alcohol, and drugs, as well as policies regarding personal phone calls, Internet usage, and personal visits.

Performance review policy – This section explains exactly how and when employee performance is evaluated, including performance review criteria.  It may also spell out the policy on progressive discipline and unsatisfactory performance, and it may list those infractions that could result in termination of employment.

Time off policies or “Leave” policies – This section explains policies on vacation, parental/maternity leave, illness, military, funeral, personal, jury duty, holidays, personal days, etc.

Documentation is critical and preparation is key.  Unfortunately, most businesses wait until employee behaviors are so problematic that they becoming damaging before a robust employment manual is created.  Proactively assessing your business employment practices will save time, headache and expense.

 

Do You De-Identify?

$1,000,000

$500,000

$2,500,000

$250,000

The above represent a short list of penalties imposed within the last year by the U.S. Department of Health and Human Services on covered entities (health care providers, insurers, and others) who have breached the HIPAA Privacy Rule by disclosing a patient’s individually identifiable health information.  Just Google “HHS HIPAA Fines” and the results will be staggering.

Bad publicity, costly fines and lengthy litigation can be avoided when information about a patient is de-identified prior to disclosure.

Under the HIPAA Privacy Rule, information can be De-Identified so that the information itself is no longer individually identifiable.  The key is the “individual” component of this equation:  de-identified informatio can be used and disclosed for a wide variety of purposes without getting the health care entity in hot water with the government.

Health care entities must question the manner in which they obtain, use and disclose information pertaining to their patients.  In order to avoid costly litigation and penalties, health care entities should note the following:

1.  The law allows de-identified personal information about a patient to be disclosed;

2.  The law does not provide a privacy or monetary interest for an individual whose information has been de-identified prior to disclosure; and

3.  HIPAA contains guidance as to the appropriate manner in which personal information is de-identified; as long as those rules are followed, the Courts in the U.S. cannot intervene.

Learning how to properly de-identify patient’s personal information in today’s litigious society is crucial.  The benefits include avoidance of fines, lawsuits and negative publicity.