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  1. #1
    Join Date
    Feb 2016
    Posts
    1

    Default How to Get Records from a Court-Ordered Treatment Program

    My question involves criminal law for the state of: Oregon

    I apologize for the length of this post. To summarize what's below, I'm asking about how to subpoena my girlfriends records of treatment from her rehabilitation center. The public defender isn't being effective at getting them, and they tell my girlfriend they won't just send them. Details below. Feel free to comment on any aspect of the post to help me learn more about process and law. Any help is much appreciated.

    Now the details: my girlfriend was convicted on theft charges in "county A" a while back. She is currently on probation and had been active in her treatment program. She's been meeting her obligations. Recently, "county B" filed charges on alleged thefts that occurred in the same time frame. The county B DA on the new case is rigidly pushing for the maximum penalty which includes 30 months in jail.

    The public defender assigned to my girlfriend's case is not doing a good job. She places the responsibility of gaining records from her treatment program (county A) on her. When my girlfriend requests records from the treatment facility, they tell her she needs to go through her PO. Her PO is not interested in helping, and says she won't do anything because it's not in her jurisdiction - the case is in another county. So she's blocked by these deferrals.

    The DA stated to the public defender that she feels they are unwilling to help because they consider my girlfriend a problem, or that there is some issue with her adhering to her treatment. So the DA is pushing for the maximum penalty. This is in contrast to the sentencing in county A which gave her probation and focused on rehabilitation - she had a very good public defender on that case. It's also important to note she is the mother of a young child which would not be in the child's best interest to have her put in jail.

    It bothers me that the public defender has not taken any action to acquire these documents which may prove to the DA that she's been active in her program and meeting her obligations. She keeps asking my girlfriend to have friends, family, etc write her letters attesting to her good character. She even asked if my girlfriend could give her screen shots of text messages from her PO. This all doesn't seem to me to be very effective in influencing the DA's stern resolve. The defender offers no solution to the problem of getting documents from the treatment facility. Does it seem reasonable for me to expect her to have had a subpoena duces tecum issued to the record keeper at the treatment facility?

    I don't feel we can count on this defender. So I'm trying to figure out how we can get one issued ourselves. I've been reading some online on how to do this. Please check my understanding.

    * I have to contact the treatment facility and ask who is in charge of patient/client/participant records. I need to get the name correct. I'm hoping they will just give it to me without any hassle.
    * I need to submit a request form for the subpoena duces tecum to the court in county B. This is a few hours drive - not sure if this is something that can be faxed, or if I can do this through county A for the case in county B (??)
    * If the subpoena request is accepted and the subpoena issued. Then do I have it in hand and have to take care of delivering it? I guess I could look up a process server service and do it that way (?)
    * Do the records get sent to the court? And how do we get access to them and can we get copies?

    Sorry, I'm new to all this. Any feedback is much appreciated. Sorry for the long post.

  2. #2
    Join Date
    Jan 2010
    Location
    New Jersey
    Posts
    3,627

    Default Re: How to Get Records from a Court-Ordered Treatment Program

    Why not do it the easy way and have your girlfriend go to the treatment facility and sign out the paperwork? You're not going to receive any paperwork about your girlfriends treatment without her signature.

    A subpoena issued from a judge is different from an subpoena issued from an attorney or court clerk. HIPAA will only respond to a subpoena issued from a judge
    I'm not a lawyer, but I did stay at a Holiday Inn Express last night.......

  3. #3
    Join Date
    Oct 2014
    Posts
    7,404

    Default Re: How to Get Records from a Court-Ordered Treatment Program

    There isn’t enough information here to know if the treatment program is subject to the HIPAA privacy rule or even to figure out what kind of treatment program this is. Those things make a difference.

    There is nothing, however, that you can do to get her records. She will need to pursue that. I suggest she start asking the facility if it has a particular form it uses for records requests. If it does, she should get that and fill it out. Most medical facilities and treatment centers want to get the request in writing and won’t give out records simply on a verbal request. If the facility does not have a form, the she needs the address of the office where the records are kept and send a letter politely asking for the records. She might cite the federal Department of Health and Human Services (HHS) regulation under the Health Insurance Portability and Accountability Act (HIPAA) that requires medical facilities that are subject to HIPAA to release to the patient his/her medical records (other than certain psychotherapy notes). This regulation is found at 45 CFR 164.524(a). That might be enough to do the trick for her. Sometimes just being able to cite a law in her favor will be enough to get the facility to act and get off their butts and get the info to her.

    If that doesn’t work then she will likely need a subpoena or court order to get the records. A subpoena may only be issued when it is needed to get information/evidence to be used in pending litigation in which it is relevant. She wants to use it to aid in her criminal defense in County B. Her lawyer as an officer of the court may be able to issue a subpoena herself to get the records. If the facility is subject to HIPAA, however, it might insist on a subpoena/order from the judge. In that case, the attorney may file the appropriate motion with the court to get that. As your girlfriend is represented by a lawyer it must be her lawyer that issues the subpoena or files a motion with the judge. Your girlfriend cannot do that herself (and certainly you cannot either since you have nothing to do with this).

    If the facility is subject to HIPAA and refuses to comply with the written request for a copy of her records then your girlfriend could file a complaint in the appropriate federal or state court to force the facility to comply with the regulation and give her the records. Her public defender won’t be able to do that, probably, since it is outside the scope of her representation in the criminal case. Your girlfriend would likely need to find a lawyer familiar with litigating matters like this. Trying to do it pro se is not recommended. So doing this is not likely to be cheap. The other problem with this route is that this sort of litigation can take many months to resolve if the facility really wants to fight it.

    Your girlfriend is free to dump her public defender and hire her own lawyer to handle the criminal case and do what is needed to get the records, if she can scrape up the money to pay for that. If she really thinks the lawyer is not representing her competently (and that’s different from whether she’s doing a top notch job) she might see if the public defender’s office will assign her a new attorney. No guarantee that any replacement lawyer would be better, though. There isn’t enough information to tell whether your girlfriend is getting a competent defense or not.

    In the end it might not matter much. Even if she is pursuing her treatment plan it might not move the DA in County B to soften his stand on her case. Nothing requires the DA to give her a nice deal here. The DA can press for the max if he wants. Of course, there is no guarantee the court would give the DA the kind of sentence the DA seeks. Your girlfriend apparently has stolen things from at least two places (maybe more) and criminals who commit multiple crimes get less sympathy from prosecutors and judges for obvious reasons. Even if the court does not impose the max sentence if your girlfriend is convicted your girlfriend may well be looking at some time in jail or prison from this. She’ll have to be prepared for that possibility.

  4. #4
    Join Date
    Sep 2005
    Location
    California
    Posts
    20,363

    Default Re: How to Get Records from a Court-Ordered Treatment Program

    I'm trying to figure out what good the records might do for the case in County B. Is she looking for these records simply to try and plead for mercy with the court or the DA in that county by arguing, "I'm doing good in recovery so I don't need to be punished for my prior bad acts."

    County B may not care about how well she might be doing in recovery. And, frankly, I know a great many addicts that do well in recovery programs because they are predictable and allow them to go through the motions. Attend meetings? Check. Pass a drug test every Thursday? Check ... just use meth/heroin/etc. over the weekend. Go to church and make a good show for the fine people there? Check. It's not hard for a person who is well versed in manipulation (as many addicts are) to make a good showing of doing well in a recovery program.

    I hope she IS doing well and has taken to the concept of sobriety. However, experience has told me that this is the exception and not the rule atleast until the addict/thief has suffered actual consequences of her actions. If this is her first pop and she has been able to get away with diversion, experience and stats tell us that this will likely not be the end of her sad tale.

    As others have said, she can pursue these records herself ...I doubt they will do any real good for County B, but, if she's trying to throw herself on the mercy of the court, maybe it will ...
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

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