How to Respond to a Subpoena for SAP Records
By Tamara Cagney, EdD, CEAP
The release of clients’ confidential records is an ongoing concern for EAPs, as they often do not know how to respond to a subpoena for their records. As a result, I have written an opinion piece regarding subpoenas and the SAP release of information. It is vital to note that the guidelines listed later in this article are not intended as a substitute for legal advice. They are offered only as suggestions of the various options that an individual SAP may consider in responding to such a subpoena. I encourage SAPs to not release clinical details but rather to release copies of SAP reports and a case summary and also to consult their attorneys.
The only information that Department of Transportation (DOT) regulations specifically dictates may not be released (even with the employee’s specific written consent) is the follow-up testing plan. All other information can be released if specifically spelled out in the employee’s signed written consent release statement. 40.329(c) states that SAPs must make available to an employee, on request, a copy of all SAP reports defined in 40.311 including the SAP’s initial report of evaluation and follow-up evaluation.
The employee’s signed release should be specific as to who you are allowed to release information to, the time period for the records to be released and the specific content of the records to be released. Blanket releases that are vague or unclear can be problematic and may require additional clarification.
Also note that you must inform the employee in writing of any information you release.
The regulatory citations covering confidentiality and release of information can be found in Subpart P of 49 CFR Part 40. Consult your local attorney for specific legal advice.
The Finer Points
The SAP is a regulatory role that requires clinical expertise but it is not a therapeutic function. No releases are used in the SAP process as nothing should interfere with communication between the service agent and the employer. But does that mean automatically releasing SAP information when it is requested for grievances, arbitrations, or legal proceedings?
There are important reasons for discussing the finer points differentiating between clinical records and assessments and SAP reports. There is no issue with SAP reports or withholding follow-up testing. Rather, the issue has more to do with clinical evaluation data released to employers – alcohol and drug history, as well as other client history and legal issues, all of which are part of an SAP assessment.
Even if the client waives the privilege, the SAP must thoroughly examine the implications of releasing the information. The SAP should attempt to assist the client in limiting disclosure only to the information required by the particular circumstances, and most importantly, only to other professionals who are qualified to interpret the data.
Types of Subpoenas
It is crucial to understand the differences between the various types of subpoenas, especially between a subpoena initiated by an attorney vs. a court-ordered subpoena. In some jurisdictions, as in California and many other states, subpoenas can be issued routinely by attorneys. In other words, not all subpoenas are court-ordered. While not all subpoenas are court orders, clinicians should not ignore any subpoena, regardless of who initiated it.
When a signed authorization to release form accompanies a subpoena, but the clinician believes that the material may be clinically or legally damaging, the clinician should discuss these issues with the client before releasing the records. If the client still insists on such a release, the clinician should note their concerns in the records and document the discussion with the client. In some situations, a clinician may offer to provide a summary of the records rather than producing the entire records.
When a signed authorization to release form is included with the subpoena, the SAP should release only the relevant and the minimum necessary information, unless otherwise ordered by the court. Special sensitivity is required when disclosing confidential information to employers. Similarly, special sensitivity is necessary when disclosing confidential information regarding other people in the client’s lives who were discussed.
There is an ethical obligation to protect the integrity and security of test information to avoid misuse of assessment techniques and data. When a valid subpoena requests the disclosure of raw data, clinicians may respond by offering to provide the data to a qualified professional, explaining that laypersons are not qualified to interpret the information. Test kits, whose purchase is restricted by the publisher to “qualified users,” should also generally be withheld. It is also generally accepted that raw testing data (from validated assessment tools) is never released for any purposes other than treatment.
Responding to a Subpoena
* When receiving a subpoena neither ignore nor send records. A clinician does not need to automatically response to the subpoena and send the records.
* Obtaining an authorization to release information from clients is one of the better and simpler ways to deal with subpoenas but that does not automatically trigger full release.
* Before responding to a subpoena consider the source of the subpoena, the client’s welfare, other people’s welfare, state and federal laws (i.e., HIPAA, Patriot Act, copyright laws), codes of ethics, labor laws and, where applicable, contractual relationships to test publishers.
* In some cases, providing only a summary of the treatment rather than the entire file may be acceptable to clients, attorneys, and courts.
* If a signed release form is included, but the clinician believes that the material may be clinically or legally damaging, he/she should discuss these issues with the client before releasing the records. If the client still insists on such a release, the clinician should note in their records their concerns and should document the discussion with the client. As always, seek consultations in complex situations.
* Clinicians should not release confidential and/or privileged information or surrender any documents or records to the person serving the subpoena no matter how aggressive the request is. The subpoena document should be accepted, and the clinician should then evaluate the situation and, when necessary, obtain legal counsel regarding applicable law and resulting obligations. However, some situations may dictate releasing the entire file.
* When being served with a subpoena, clinicians can simply say: “I am not allowed and cannot disclose whether or not the person noted in the subpoena is known to me or has been under my care. If the person has been my client, I could not provide any information without a signed release from that individual or a valid court order.”
* After receiving a subpoena, clinicians should carefully determine its validity, who initiated it and whether it is in fact a court order.
* When the subpoena request includes tests’ protocols, record forms, raw data or entire test kits, be aware and cautious of copyright laws, and your contract with the publisher, as well as federal and state laws. Consult with expert counsel and/or explain to the judge, if necessary, about the potential conflict between the subpoenas, codes of ethics, and copyright laws.
Jaffee v. Redmond
The U.S. Supreme Court ruled to protect the clinician-patient privilege in the federal courts in the Jaffee vs. Redmond case in 1996. This landmark decision acknowledged the need to provide absolute protection from disclosure of communications between clinicians and their patients.
In the majority opinion, since retired Justice John Paul Stevens said: “Reason tells us that clinicians and patients share a unique relationship, in which the ability to communicate freely without the fear of public disclosure is the key to successful treatment.”
Justice Stevens also acknowledged something that many clinicians ignore. Confidentiality is more important than informed consent. We must strive to protect the privacy of our patients, not simply inform them that there is no privacy.
Tamara Cagney, EdD, MA, BSSN, CEAP, is an internal EAP at Sandia National Laboratories in Livermore, Calif. She is also the President of EAPA. She may be reached at firstname.lastname@example.org.