Author: LegalEase Solutions

QUESTION PRESENTED 

1. Any limitations on subpoenaing medical records from the VA (veteran’s administration, a federal agency) for a decedent in a trust contest in Florida.
2. Any limitations on deposing VA health care providers re those same records.
3. Any limitations regarding subpoenaing Tricare insurance records. 

SHORT ANSWER        

1. There are no direct limitations to subpoenaing medical records from the VA. It, like any other federal agency, has internal rules that it will reference when responding to a subpoena For instance, with regard to discovery of medical records, the Federal Rules of Civil Procedure require that the party or attorney serving a subpoena must take reasonable steps to avoid undue burden or expense on the person subject to the subpoena. Also, a federal agency covered under the Veterans’ Records Statute shall make reasonable efforts to serve advance notice to any individual before any personal information on such individual is made available to any person under compulsory legal process.
2. There are also no direct limitations on deposing VA health care providers regarding the same records. The internal rules will apply and limit objections that can be raised in discovery, e.g. if a VA employee believes he or she should not have to attend a deposition for some reason. However, patient information is privileged and may not be disclosed unless the disclosure falls within the statutory exceptions. Also, the patient must first be given notice before the subpoena is issued before compelling the disclosure of patient’s medical records.
3. There are similarly no limitations on subpoenaing Tricare insurance records, as it is a private entity and the appropriate court (here, the court that has jurisdiction) may issue a subpoena for records from the same. The Health Insurance Portability and Protection Act contain specific provisions that allow for disclosure of records under certain circumstances, including law enforcement. The company may invoke limitations under HIPAA or another statute for a civil action, but this is not a limitation on the issuance of the subpoena itself. Rather, this can only be raised by Tricare once a party has sought documents from them.

Our review included all available appellate decisions in the jurisdiction, as well as a more general search for such limitations. None were found. Accordingly, we conclude that the answer to each of the above is “no”. The research contained herein seeks to provide a general outline of the procedures used in responding to subpoenas received by the VA.

RESEARCH FINDINGS (a)Subpoena- In General

(i) In Federal

Generally, subpoenaing medical records from the Veterans’ Administration imposes no specific limitations. But the Veterans’ Administration has its own rules and regulations while responding to a subpoena.  These regulations involve serving of advance notice to that individual whose personal information is revealed through a legal process.

It is established that “[t]his statute [Federal Housekeeping Statute] allowed government agencies to create procedures for responding to subpoenas and requests for testimony.” In re Motion to Compel Compliance with Subpoena Direct to Dep’t of Veterans Affairs, 257 F.R.D. 12, 15 (D.D.C. 2009).

However, “Rule 45(c)(1) [Fed.R.Civ.P. 45(c)(1)] requires that the party or attorney serving a subpoena take reasonable steps to avoid imposing undue burden or expense on the person subject to the subpoena.” Id. at 18.“The court then has the obligation to quash or modify a subpoena when it subjects a person to an undue burden. Its obligation is particularly acute lest public resources be commandeered for private purposes.” Id.

“VA[Veterans Administration] requires a federal court to quash a subpoena of an agency employee, based on a regulation restricting that employee’s testimony without agency permission.” Dean v. Veterans Admin. Reg’l Office, 151 F.R.D. 83, 86 (N.D. Ohio 1993).

“[W]here a valid subpoena has been served upon a government agency, the controlling legal standard by which the court reviews whether the agency must comply is based on the Federal Rules of Civil Procedure.” In re Motion to Compel Compliance with Subpoena Direct to Dep’t of Veterans Affairs, 257 F.R.D. 12, 15-16 (D.D.C. 2009).

(ii) In Florida

In Florida, patient information is regarded as privileged information which could be disclosed only in case of a statutory exception. Even for an investigative subpoena the patient must be provided with a notice initially before issuance of subpoena and also before such information concerning the patient is revealed. “Patient information is privileged and may not be disclosed unless the disclosure falls within one of the statutory exceptions.” Lemieux v. Tandem Health Care of Florida, Inc., 862 So. 2d 745, 748 (Fla. Dist. Ct. App. 2003). “[T]he Legislature did not intend to require application of the Florida Rules of Civil Procedure to the issuance of investigative subpoenas under the current version of section 895.06.” Eight Hundred, Inc. v. State, 781 So. 2d 1187, 1190-91 (Fla. Dist. Ct. App. 2001). “Thus, when an investigative subpoena is issued pursuant to this statute for legitimate investigative reasons, the Florida Rules of Civil Procedure do not apply.” Id.

Therefore, “the state attorney may use an investigative subpoena to compel disclosure of a patient’s medical records, but the patient must first be given notice before the subpoena is issued.” Hunter v. State, 639 So. 2d 72, 74 (Fla. 5th DCA 1994).

(b) Veterans’ Records and Disclosure

(i) Federal

The Veterans’ Records Statue authorizes the administrator to disclose the information in records while imposing certain conditions for such disclosure. However as discussed before, reasonable efforts have to be taken in serving advance notice to such individual before any personal information on such individual is made available during a legal process.

“The Veterans’ Records Statute provides that the Administrator shall disclose files “[w]hen required by process of a United States court to be produced in any suit or proceeding therein pending.” Doe v. DiGenova, 779 F.2d 74, 79 (D.C. Cir. 1985). “It allows disclosure only pursuant to the order of a court of competent jurisdiction.” Id.

• 552a. Records maintained on individuals

(b) Conditions of disclosure.–No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be–***

(11) pursuant to the order of a court of competent jurisdiction;

5 U.S.C.A. § 552a

“While a federal grand jury subpoena is issued under the authority of a court, the court has no substantive involvement in a particular subpoena unless the subpoenaed party challenges it.” Doe v. DiGenova, 779 F.2d 74, 80 (D.C. Cir. 1985). “Even when a subpoena duces tecum is involved, and hence the fourth amendment may be implicated, no prior authorization for the subpoena has been required.” Id. Thus, “disclosure  . . . was authorized under the provision of the Veterans’ Records Statute permitting disclosure when required by any department or other agency of the United States Government.”  Id. at 85.

However, “each federal agency covered by this Act[Veterans’ Records Statute] which maintains an information system or file shall make reasonable efforts to serve advance notice on any individual before any personal information on such individual is made available to any person under compulsory legal process.” Id. at 81.

(ii) In Florida

In a case in Florida, it was observed that court must act as a shield to protect the patient’s right to privacy and must determine whether a record revelation is relevant and necessary because, such request for one’s medical records allows the discovery of a broad class of medical and mental health records without a sufficient showing of the relevance and such disclosure may result in lack of protection for right of privacy for patients.

In Faber v. State, 157 So. 3d 429 (Fla. Dist. Ct. App. 2015), the defendant was a veteran who was charged with murder. Under that circumstance the state sought to subpoena the medical records including his mental health records, from a local Veterans Affairs (VA) hospital. The defendant then appealed for the decision maintained by the Circuit Court which held that, the State presented a sufficient nexus between defendant’s mental health records and the facts of the crime. Id. But the District Court of Appeal held that, the state could seek to subpoena all the medical records of a patient from all of the patient’s health care providers without there being a scintilla of evidence to suggest that any of the medical records are relevant to a pending criminal investigation; at the same time court must also act as a shield to protect the patient’s right to privacy by determining whether medical records are relevant to a pending criminal investigation. Id. at 431. The court also observed that, the State’s request for his medical records allows the discovery of a broad class of medical and mental health records without a sufficient showing of the relevancy of the records to the pending charges. Id. at 430.

The statute states that:

• 14.804 Factors to consider.

In deciding whether to authorize the disclosure of VA records or information or the testimony of VA personnel, VA personnel responsible for making the decision should consider the following types of factors:

(a) The need to avoid spending the time and money of the United States for private purposes and to conserve the time of VA personnel for conducting their official duties concerning servicing the Nation’s veteran population;

(b) How the testimony or production of records would assist VA in performing its statutory duties;

(c) Whether the disclosure of the records or presentation of testimony is necessary to prevent the perpetration of fraud or other injustice in the matter in question;

(d) Whether the demand or request is unduly burdensome or otherwise inappropriate under the applicable court or administrative rules;

(e) Whether the testimony or production of records, including release in camera, is appropriate or necessary under the rules of procedure governing the case or matter in which the demand or request arose, or under the relevant substantive law concerning privilege;

(f) Whether the testimony or production of records would violate a statute, executive order, regulation or directive. (Where the production of a record or testimony as to the content of a record or about information contained in a record would violate a confidentiality statute’s prohibition against disclosure, disclosure will not be made. Examples of such statutes are the Privacy Act, 5 U.S.C. 552a, and sections 5701, 5705 and 7332 of title 38, United States Code.);

(g) Whether the testimony or production of records, except when in camera and necessary to assert a claim of privilege, would reveal information properly classified pursuant to applicable statutes or Executive Orders;

(h) Whether the testimony would interfere with ongoing law enforcement proceedings, compromise constitutional rights, compromise national security interests, hamper VA or private health care research activities, reveal sensitive patient or beneficiary information, interfere with patient care, disclose trade secrets or similarly confidential commercial or financial information or otherwise be inappropriate under the circumstances.

(i) Whether such release or testimony reasonably could be expected to result in the appearance of VA or the Federal government favoring one litigant over another;

(j) Whether such release or testimony reasonably could be expected to result in the appearance of VA or the Federal government endorsing or supporting a position advocated by a party to the proceeding;

(k) The need to prevent the public’s possible misconstruction of variances between personal opinions of VA personnel and VA or Federal policy.

(l) The need to minimize VA’s possible involvement in issues unrelated to its mission;

(m) Whether the demand or request is within the authority of the party making it;

(n) Whether the demand or request is sufficiently specific to be answered;

(o) Other matters or concerns presented for consideration in making the decision.

38 C.F.R. § 14.804

1. Depositions

            The internal regulations of Veterans’ Administration enforce the VA to evaluate the nature of testimony requested to determine whether it will adversely affect the ability of the agency. Thus, depending upon the type of information involved, the government may vary the degrees of discretion to grant or deny such requests.

(i) Federal

The VA internal regulations, which are codified in 38 C.F.R. § 14.800 et seq., require that the VA determine the nature of the testimony requested, and evaluate certain factors set forth in 38 C.F.R. § 14.804, relating to how the testimony in the current case, as well as future cases, will impact the ability of the agency or VA personnel to perform their official duties.

Solomon v. Nassau Cnty., 274 F.R.D. 455, 458 (E.D.N.Y. 2011).

“In other words, the statute gives the government varying degrees of discretion to grant or deny such requests depending on the type of information involved.” Id.

The statute provides that:

• 14.803 Policy

(a) VA personnel may provide testimony or produce VA records in legal proceedings covered by §§ 14.800 through 14.810 only as authorized in accordance with these regulations. In determining whether to authorize testimony or the production of records, the determining official will consider the effect in this case, as well as in future cases generally, based on the factors set forth in § 14.804, which testifying or producing records not available for public disclosure will have on the ability of the agency or VA personnel to perform their official duties.

(b) The Department of Veterans Affairs does not seek to deny its employees access to the courts as citizens, or in the employees’ private capacities on off-duty time.

(c) The Department of Veterans Affairs does not seek to deny the Nation’s veterans access to the courts.

38 C.F.R. § 14.803

(ii) In Florida

“This court has previously recognized that an order which has the effect of denying a party the right to depose an alleged material witness inflicts the type of harm that cannot be corrected on appeal since “there would be no practical way to determine after judgment what the testimony would be or how it would affect the result.” Sabol v. Bennett, 672 So. 2d 93, 94 (Fla. Dist. Ct. App. 1996).

1. Tricare

Tricare is a private insurer that only insures military personnel. The patient or the legal representative of a patient, in accordance with the Privacy Act of 1974 (Public Law 93-579), may authorize the TRICARE Health Plan to disclose the medical information possessed by them, to any third party or any individual upon authorization for disclosure from the individual for personal use, insurance, continued medical care, school, legal, retirement/separation or other reasons with the help of a Privacy Act Statement – ‘DD FORM 2870’. At the same time this may also be revoked in writing at any time by the patient or their legal representative.[1] But, they can be required to respond to a subpoena issued by the court even when the patient has not given authorization for the disclosure. However, just like any other private entity, a party can get a court to issue a subpoena as long as there is jurisdiction.

The United States Supreme Court has stated that “Federal Rule of Civil Procedure 45 grants a district court the power to issue subpoenas as to witnesses and documents, but the subpoena power of a court cannot be more extensive than its jurisdiction.” Sucart v. Office of Comm’r, 129 So. 3d 1112, 1114 (Fla. Dist. Ct. App. 2013). Moreover, “[t]he Court has inherent power to issue a subpoena duces tecum in a proper case. . . . both the Federal and State Constitutions require that the forced production of documents by subpoena be not unreasonable and the production of records may not be required under such circumstances as to contravene such constitutional provisions.” Imparato v. Spicola, 238 So. 2d 503, 510-11 (Fla. Dist. Ct. App. 1970). “The only limitation private parties can invoke are general limitations as provided in the Rule 45(c)(1) [Fed.R.Civ.P. 45(c)(1)] which requires that the party or attorney serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on the person subject to the subpoena”. In re Motion to Compel Compliance with Subpoena Direct to Dep’t of Veterans Affairs, 257 F.R.D. 12, 18 (D.D.C. 2009).

1. The Health Insurance Portability and Accountability Act, HIPAA

The limitations available under HIPAA may be invoked for a civil action but this is not a limitation on the issuance of the subpoena itself. However, HIPAA while addressing subpoenas establishes a regulatory measure for the release of protected health information by specified covered entities and thereby protects privacy involved in health information.  Even federal regulations promulgated pursuant to HIPAA protect from disclosure such information used in a civil action.

“HIPAA addresses privacy in protected health information by regulating the release of such information by specified covered entities: health plans, health care clearinghouses, and certain health care providers.” State v. Carter, 23 So. 3d 798, 800 (Fla. Dist. Ct. App. 2009).

“HIPAA, by its own language, exempts disclosure of individually identifiable medical information for law enforcement purposes … [p]ursuant to process and as otherwise required by law.” State v. Thompson, 72 So. 3d 246, 247 (Fla. Dist. Ct. App. 2011).

Also, “under federal regulations promulgated pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), . . . information compiled in reasonable anticipation of, or for use in, a civil … action is protected from disclosure.” Michota v. Bayfront Med. Ctr., Inc., No. 04-1057-CI-19, 2005 WL 900771, at *5 (Fla. Cir. Ct. Feb. 24, 2005).

CONCLUSION

Based on the foregoing, it can be concluded that the internal regulations of Veterans’ Administration shall make some reasonable effort to inform the patient before an information concerning one’s health conditions is revealed through records and testimony during a court procedure. Moreover, as long as there is jurisdiction any private entity can request a court to issue a subpoena. Thus, the only limitation available is under HIPAA, but it may be invoked only for a civil action.

[1] http://www.dtic.mil/whs/directives/forms/eforms/dd2870.pdf