The Patriot Act: Implications for Physicians
In response to the events of September 11, 2001, Congress enacted the Patriot Act, [50 U.S.C. 1861 et seq.] on October 21, 2001, which gave federal officials power to conduct surveillance within the United States to prevent terrorism and monitor the activity of foreign individuals. The Patriot Act was reauthorized with substantial amendments on March 9, 2006. Under Section 215 of the Patriot Act, the Federal Government has the authority to request (i) a court order requiring a physician to produce medical records (“production order”), as well as (ii) a concurrently issued non-disclosure order (“gag order”) that prohibits a physician from disclosing to any other person (except for an attorney or persons necessary for compliance with the production order) the existence of the production order*.
Pursuant to the 2006 amendments to the Patriot Act, a physician may challenge the legality of a production order immediately in a U.S. District Court. A concurrently issued gag order may not be challenged for one year.
A petition to challenge a production order will be assigned to a single judge from a pool of three U.S. District Court judges who will conduct an initial review of the challenge within 72 hours of the petition’s filing. If the petition is frivolous, the judge is required to immediately deny the petition and affirm the production order whereupon the recipient of the order must comply with the terms of the order within the time period stated unless an appeal is filed.
A judge considering a petition to modify or set aside a production order may do so if such order is deemed to be unlawful. A judge considering a petition to modify or set aside a nondisclosure order may grant such petition only if the judge finds that there is no reason to believe that national security may be endangered.
Recommendations for Health Care Professionals Faced with a Production Order
The recipient of a Patriot Act production order for patient records is required to promptly respond by the stated production date.
When a physician is the recipient of a Patriot Act production order, the AMA recommends the following:
- The physician immediately notify his/her attorney and discuss action to be taken;
- If the physician has received only a production, but not a gag order, the physician should consider with his/her attorney whether to notify the affected patient(s). The purpose of the notification would be to (i) obtain a patient’s consent to disclosure pursuant to the production order and/or (ii) to tender to the patient the opportunity/obligation to challenge the production order. To view a sample notification letter, click here.
If the patient consents, the physician should promptly comply with the production order. If the patient seeks to challenge the production order, the physician should be guided by his/her counsel as to whether/when he/she may still need to comply with the order if the order is not quashed or limited.
If the patient does not respond to the notification or refuses to consent or does not seek to challenge (or unsuccessfully challenges) the production order, the physician may find guidance in the AMA Code of Ethics which provides a physician should “not reveal confidential communications or information without the consent of the patient, unless provided for by law or by the need to protect the welfare of the individual or public interest."
If a gag order is concurrently issued with a production order, a physician may not notify the patient, and should immediately meet with his/her attorney to consider the physician’s legal and ethical obligations. While the gag order cannot be challenged by the physician for one year from the date of issuance of the accompanying production order, a challenge to the production order may result in the gag order being re-examined.
There is no legal obligation that a physician challenge a production order. A petition to challenge a production order must be filed in the U.S. District Court where the patient records are located. Guidance from an attorney as to the effort and cost to the physician of mounting a challenge may be instructive. However, court costs and attorney’s fees are not recoverable, regardless of the outcome of the challenge.
This information does not constitute legal advice and cannot substitute for individualized legal analysis by an attorney experienced in handling physician affairs possessing knowledge of the Patriot Act. The impact of judicial or legislative actions occurring since the preparation of this educational piece (September 11, 2007) should always be considered when consulting with legal counsel. If you need a referral to a qualified attorney, please contact your state medical society.