Guidelines for responding to a subpoena
The moment during which an outpatient facility manager or employee receives a subpoena can be very stressful and anxiety-provoking.
However, you can prepare for such an event by learning a little more about the subpoena process and following certain guidelines, according to Sanjay Sharma and Jack T. Diamond, attorneys with Buckingham, Doolittle, and Burroughs' Health Law Department.
Here is their guide to understanding the subpoena process:
· What is a subpoena?
A subpoena is a command to produce documents, testify, or both, at a given time and place. A subpoena may be issued by a court, grand jury, a lawyer, or government agency.
As all subpoenas have the authority of either a court or statute behind them, noncompliance carries the threat of punishment, fines or imprisonment. Accordingly, you must comply with a subpoena unless you are able to convince a court or administrative authority to quash the subpoena or restrict its scope. Moreover, documents and testimony may be withheld if you can successfully claim attorney-client privilege, the work product doctrine, and in some cases, the Fifth Amendment privilege against self-incrimination.
Health care providers generally receive subpoenas from the Office of the Inspector General (OIG) of the Department of Health and Human Services or the Department of Justice.
The OIG has the authority to subpoena information documents, reports, records, and accounts of any provider participating in the Medicaid or Medicare program. Failure to comply with an OIG subpoena or other requests for access to records may result in a provider being excluded from the Medicaid or Medicare program.
· What do you do when you receive a subpoena?
Consult with legal counsel to develop an appropriate strategy and response to the subpoena. You should, however, take the following steps:
1. Contact your counsel and provide the following information:
- the court agency or other entity that has issued the subpoena;
- the date and time that the subpoena was served and on whom;
- the law enforcement or regulatory agencies involved;
- the scope of information requested by the subpoena;
- the return date or time for responding to the subpoena;
- the information or documents being requested.
2. Determine if the subpoena is part of a broader investigation by the government.
3. Advise employees that they:
- may be contacted by investigators either on or off the work site;
- should consult with an attorney before answering questions;
- should have counsel present during their interview.
4. Advise employees not to discuss the subpoena or any related events with members of the press.
5. Determine whether it is appropriate to conduct an internal investigation or audit.
· How do you respond to a document request?
It is imperative for any health care provider to control the paper flow in responding to a subpoena. One person should be in charge of searching for and producing the responsive documents under the direction and control of counsel.
If, however, the person in charge has been involved in the questioned conduct, that person must be removed as coordinator of the document production. A record should be kept of the efforts to search for documents and the results of the search. Create a "privilege log" for those documents that may qualify for a privilege.
Each person who forwards documents to be reviewed must document specifically where they searched and what documents were located.
Finally, the documents must be reviewed by an attorney. The attorney will then categorize the documents as responsive and not privileged, responsive and privileged, or nonresponsive. Once the responsive documents have been identified, they should be numbered and photocopied. If the subpoena allows copies to be produced, retain the originals and secure them in a locked filing cabinet or room, if necessary. Control and document access to the original documents.
· What's the bottom line?
The bottom line with any subpoena is that an attorney should be intimately involved in responding to the subpoena. Legal counsel may effectively challenge and quash a subpoena, may reduce its scope, or argue that a privilege prevents the documents from being disclosed.
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