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How to Negotiate for More Time When Responding to Subpoenas

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How to Negotiate for More Time When Responding to Subpoenas

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Respond to subpoena

If your practice receives a subpoena for records and documents, it can spark immediate fear—not only because it’s always stressful to deal with legal issues, but also because the clock is ticking to respond to the subpoena on time. Fortunately, the person sending the subpoena understands that you’re busy, and may allow extra time to respond to subpoena notifications.

To understand how you can negotiate for more time to respond to subpoena documents, check out the following tips.

Contact Your Attorney First

No matter what, if you get a subpoena in the mail, you should reach out to your practice’s healthcare attorney and let them know it arrived and ask for advice. They are likely to help you through the process, and will be a key part of your negotiation process when asking for more time to respond.

Contact the Issuing Party

Once you’ve consulted with your attorney and they agree that it’s a good idea to ask for more time, you or your lawyer will contact the issuing party, which is typically either an attorney or someone else at the organization involved in the legal proceeding. Let them know that you plan to get them everything they’re requesting, but it may not be all at once, and you may instead send the documents at different times, a process referred to as “rolling production.” Another alternative is to let them know you can get them everything they need if they’ll extend the deadline.

Find out the Issuing Party’s Priorities

Your next step during the negotiation process is to find out what the priority documents are from the requesting party. You or your attorney can let them know that you likely won’t be able to get them everything they’re requesting by the deadline, but you can get them something, as long as you know what they’ve prioritized as the most important. In most cases, they’ll say their first priority is the medical records, and then they’ll negotiate a schedule for when you can get those to them, followed by their lower-priority documents.

Consider Whether Categories of Documents Will Suffice

In some cases—particularly when the government is the party requesting the documents—they may limit their request to particular categories of documents once you call to negotiate. For example, suppose the OIG requests medical documentation records, billing records, and a log of who worked on a particular date.

When you call them, consider offering to send them the medical records, and then once they review those, they can decide whether they need the additional documents. Although this may not work every time, attorneys report that it does the trick in some cases. Although this may seem nerve-wracking to ask about, government lawyers are accustomed to such requests, and they’ll be honest about whether they really need all the documents up front or if they can work out a rolling production agreement. If they truly do need all the documents together, then you can shift to asking what type of deadline flexibility they have.

Don’t Assume Requests Mean You’re Hiding Something

Some practices are reluctant to ask for more time or to request a rolling schedule of subpoena responses because they think it sends the signal that they’re trying to hide something. However, the reality is that they know that responding to subpoenas creates a burden on your organization, and most attorneys want to work with you to get what they need.

Document Everything

Once an attorney agrees to the negotiated terms (either a new response date, a rolling production, or a limit on the documents you’ll be sending), it’s important to document everything. Write to the requesting party confirming what you discussed and the new terms, and then make sure you meet all the deadlines you’ve agreed upon.

Want more advice about dealing with medical record requests? Attorney Lester Perling, Esq., is here to help. During his online training event, “Stop Costly Legal Errors When Responding to Medical Record Requests,” Lester will walk you through every aspect of working with requesting parties. Stay compliant and learn how to respond to a subpoena with this essential training!

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