QUESTION: Is a subpoena from a state board of medicine treated just like any other subpoena for purposes of the Health Insurance Portability and Accountability Act (“HIPAA”)? In other words, is it true that the hospital can’t release a patient’s Protected Health Information to a state board of medicine unless it first takes certain steps, such as getting a qualified protective order from a court, or informing the patient? Thanks.
ANSWER: No, a subpoena from a state board of medicine is not treated like any other subpoena for HIPAA purposes. Protected Health Information (“PHI”) which is the subject of such a subpoena can be released to a state board of medicine without a qualified protective order or notice to the patient. HIPAA provides that PHI may be disclosed to a “health oversight agency” for “licensure or disciplinary actions” necessary for oversight of the health care system. (45 C.F.R. §164.512(d).) HIPAA also states that a state board of medicine is a “health oversight agency.” (45 C.F.R. §164.501.) That said, if certain categories of particularly sensitive information are involved (such as mental health, drug/alcohol, or HIV/AIDs), state law should be consulted to see if it offers greater protections to the information.