Health providers know they have federal HIPAA and state privacy law responsibilities to keep and maintain accurate and confidential patient treatment records. They also have a duty to comply with duly issued law enforcement subpoenas and search warrants. There are resources to assist health care providers to balance the two.
In the state of New York, all health records are considered privileged. But there is a heightened confidentiality for health records involving either mental health care; sexual health, including reproductive health and sexually transmitted diseases such as AIDS; and substance use disorder treatment such as for alcoholism or drug addiction. There are also federal and state privacy laws that provide additional protections and limit the disclosure of patient information to law enforcement officers, such as immigration status or reproductive health. Practitioners owe these responsibilities to their patients — but that confidentiality has limits.
Contents and Confidentiality of Treatment Records
Providers are not required to ask patients questions about their legal status or document their answers. If patient information must be collected (for example, for the purposes of Medicaid enrollment or referral to an aid agency), providers do not have to include that information in the patient's medical or billing records.
Disclosure of Confidential Information to Law Enforcement
Practitioners are not only allowed to decline to disclose, but they are also bound by their duty of confidentiality not to disclose health records to anyone without the patient's written permission. As every well-written Patient Privacy Policy enumerates, there are exceptions to patient confidentiality. This includes exceptions for valid law enforcement purposes, such as a signed court order.
If a health office receives a subpoena or a court order, call an attorney to verify its validity before responding. Courts have competing jurisdictions. Subpoenas may be challenged for their breadth or necessity, so do not assume compliance will be required.
Office Searches by Law Enforcement
The Fourth Amendment to the U.S. Constitution protects against unreasonable searches and seizures. The permissibility of a search depends upon a person's reasonable expectation of privacy in the area searched at the time of the search.
Therefore, individuals in a health office are most exposed in public areas such as the waiting room and parking lot, where anything in public view can be noted. They are less exposed in areas designated in advance as “private areas,” such as treatment rooms, bathrooms, office computer screens and files in personal workspaces that are closed to the public.
Best practices are to establish a written policy identifying areas as private and limiting access to those areas to patients, their family members, and essential care providers. Exclude all other staff and uninvited visitors. Define business hours in those areas. Ideally, the private space designation begins at the front door, where it states the office is private, and only invited individuals are permitted to enter.
According to constitutional rights organizations including Physicians for Human Rights and the ACLU, if any branch of law enforcement arrives at a health office, patients and practitioners should do the following.
- Remain calm. Do not engage in fight or flight.
- Document the encounter if you can.
- Call an attorney.
- Decline to answer any questions. There is no obligation to answer personal questions, questions about patients, or questions about where records or other information is located. Any volunteered information may be used by law enforcement against the individual.
- Decline to invite them into areas designated as private. If they enter private areas without invitation, verbally state the objection.
- Ask to see and have a copy of any search warrant, court order, subpoena, or other court documentation. Copy/photograph it if possible. Note whether it is signed, by whom, when it is dated, descriptions of the areas to be searched, and the reasons why. Provide it to an attorney when able.
- Be patient. Like any request for privileged records, law enforcement intention to search and view privileged records must be balanced against the patient's rights. It may take time for the attorneys and courts to work it out.
"As every well-written Patient Privacy Policy enumerates, there are exceptions to patient confidentiality, including for valid law enforcement purposes."
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