Longshore Act: Use and Abuse of Authorizations Versus Subpoenas

The Challenge of Efficient and Informal Discovery Versus Privacy

By Steven M. Birnbaum, Law Offices of Steven M. Birnbaum, San Rafael, California

Increasingly, even though the Office of Administrative Law Judges has a rather simple procedure for issuing subpoenas, it seems that claimants are instead, or in addition, requested to sign authorizations to obtain medical records that would otherwise be protected by various privacy statutes. There may be a number of good reasons for anyone counseling the signing of these authorizations to take a very critical look at the issues involved. There also may be a number of very good reasons, especially in the litigation phase of the case, for counsel seeking records to try to forego the route of authorization and instead to vigorously attempt to subpoena records, as it may be quicker.

There is no question that the OALJ encourages an informal and easy discovery process. In some cases, signed authorizations may and should be the most expeditious method to obtain records. Yet there have been too many warning signs for all professionals in the field to ignore how seriously the federal and state governments take the protection of privacy, indicating a need to be aware of the various liabilities that may be incurred by ignoring these warnings. This article will not examine each and every state statute governing the privacy of medical records. It will, however, look at some federal statutes that deal with the privacy issue that are involved in a goodly number of requests in cases under the Longshore and Harbor Workers’ Compensation Act and its extensions, 33 U.S.C.S. § 901 et seq. It will also examine the issue of authority on the part of the OALJ to compel the claimant to sign an authorization when subpoenas are available.

The Health Insurance Portability and Accountability Act of 1996 (“HIPAA,” 42 U.S.C.S. § 1320d et seq.), 45 C.F.R. §§ 160 and 164 et seq., 38 U.S.C.S. §§ 5701 and 7332 and 5 U.S.C.S. § 552a are federal statutes and regulations concerned with the privacy of medical documents. All provide for the use of subpoenas in obtaining medical information requested.

29 C.F.R. § 18.56 governs the use of the subpoena in practice before the OALJ. That section and its subparts, in particular (e), indicate that the party adversely affected by a failure to obey may apply, when authorized by statute or by law, to the appropriate district court to enforce the subpoena.

Thus, the power of the OALJ to issue subpoenas and deal with obtaining medical records is directly authorized by the above regulation. There is also a prescribed procedure in HIPAA. Under 45 C.F.R. §164.512(e), a covered entity is permitted to disclose protected health information during the course of judicial or administrative proceedings. The paragraph addresses two different situations in which disclosure is permitted: (1) in response to an order of a court or administrative tribunal, and (2) in response to a subpoena, discovery request or other lawful process. 45 C.F.R. § 164.512(e)(1)(i) & (ii).

Likewise, 38 U.S.C.S. §§ 5701 and 7332 are provisions governing medical record privacy for veterans or those in the military and both allow for a court to order medical records through the use of a subpoena.

5 U.S.C.S. § 552a is a privacy protection statute but allows for the release of medical information by use of the “order of a court of competent jurisdiction.” 5 U.S.C.S. § 552a(b)(11)

Considering the authorized use of subpoenas in the statutes and regulations above, attempting to obtain medical records with a plethora of varied authorizations could instead produce a number of drawbacks that those attorneys seeking authorizations to be signed may want to consider, and those representing claimants should consider before allowing claimants to sign them.

The desire to expeditiously obtain records may be blocked or significantly slowed through the use of authorizations because medical offices, hospitals and public and private institutions don’t necessarily honor one standard form. Commonly, many health organizations require a special authorization that they themselves issue.

It is also not uncommon to receive less than the full file if the health organization keeps more than one type of medical file and the authorization does not allow for specification of which file is sought. Specification may be more difficult in authorization forms.

Finally, authorization forms may not be as likely to be taken seriously or recognized to have the same gravitas as a court-issued subpoena and thus may be ignored to some extent or completely, without the provider facing any appreciable sanctions, and further delaying the release.

On the other hand, the claimant’s attorney urging their client to sign an authorization could make a costly mistake either tactically or for malpractice purposes for not scrutinizing the authorization in great detail. That advocate should take great care in limiting the request for information strictly to information necessary for the claims filed. Unfortunately, defining how limited the authorization needs to be construed can be challenging in itself.

Additionally, agreeing to have a claimant sign an authorization when no statute or other authority exists to force the signing also presents the odd circumstance of aiding an opponent in their case against you.

Voluntary signature and giving up all the protection that the statutory requirements of a subpoena affords may be difficult to explain if an attorney’s urging of signature for an authorization leads to unintended release of private information that becomes actionable under one of the privacy statutes.

Refusal to sign may appear to some courts as an unwarranted lack of cooperation in the discovery process. Yet, as suggested above, there are real reasons to object.

This is especially true when there has been no attempt at all to subpoena records and no attempt to involve the court in compelling the release via subpoena. Why would the court grant a motion to compel when no good cause can be established?

While the idea of compelling signature of authorizations has been tested at the ALJ level, with uneven results, there is no appellate guidance establishing any legal authority to substantiate a court compelled signature.

It has also been suggested that the OALJ website may offer particular authorization forms with a further suggestion that they are necessary to accompany subpoenas to certain agencies of the federal government. Yet there is no support in case law or statute requiring the use of these forms. A careful review of at least the Veteran’s Administration authorization form on the OALJ website will show that on it there is citation to several privacy statutes governing the release of VA records (45 C.F.R. § 164 et seq., 38 U.S.C.S. § 5701 and 5 U.S.C.S. § 552a.) A careful reading of those statutes indicates no requirement for authorizations to accompany court-issued subpoenas.

Thus, all parties in litigation before the OALJ must be urged to place the requirements of privacy before ease or speed when considering using either a form that has not been sanctioned by any court or a subpoena issued by the OALJ, with its inherent protection. There is apparently also no statutory reason that the resistance of any public or private party to the lawful subpoena of the OALJ should successfully block records being released that are essential to the proving or defense of a case under the Longshore and Harbor Workers’ Compensation Act.

© Copyright 2016, Law Offices of Steven M. Birnbaum. All rights reserved. Reprinted by permission. This article appeared in a recent edition of Benefits Review Board Service Longshore Reporter (LexisNexis).