License Defense & Subpoena Representation

Disciplinary Proceedings, License Defense, and Subpoenas for Non-party Records and Testimony

Schaupp McDermott specializes in supporting and defending mental health professionals facing license complaints related to alleged misconduct, and in responding to litigation requests for non-party records and/or testimony.

Consultation with our attorneys ensures legally compliant responses to the following:

• Patient initiated requests for medical records under New York State law and HIPAA
• Investigative inquiries related to alleged professional misconduct
• Subpoenas demanding non-party records or testimony regarding current or former patients.

Personalized Defense Strategies for Mental Health Professionals in Disciplinary Proceedings

We understand the risks involved when license and disciplinary proceedings are underway and what is at stake. When a license complaint is made, therapists face potential fines, censure, license suspension, or possibly even license revocation. As our client, we will defend you by all means available. Hiring competent counsel at the onset of even the threat of a claim is critical to a successful outcome.

Our approach is proactive and uniquely tailored to address the specific circumstances and risks of each case. We work closely with our clients to understand their situation fully, conducting thorough investigations and carefully analyzing the facts and circumstances relevant to mental health treatment. With Bruce Hillowe serving as Of Counsel to our firm, we are poised to bring our clinical and legal experience to procure the best possible outcome.

New York State grants certain powers to the New York State Education Department’s Office of Professional Discipline (OPD). The OPD is tasked with investigating each complaint received across a wide range of over fifty professional licenses, from architects and plumbers to mental health counselors and social workers.

The regulations governing these investigations grant the OPD broad investigative powers, including the authority to proceed without disclosing the specific allegations to the licensee under investigation. This lack of transparency often results in therapists being cited for violations that are unrelated to the initial complaint. Having competent and experienced counsel is essential to safeguarding your professional practice.

At Schaupp McDermott, our attorneys possess extensive clinical experience. This unique perspective allows us to fully grasp not only the risks you face but also the subtle nuances inherent to treatment-related issues that come under OPD scrutiny when a complaint is filed. Understanding the complexities specific to mental health treatment is often crucial when defending against a license complaint.

A license complaint can result in several different outcomes. Should the Board tasked with reviewing the complaint decide to prosecute, we will, as your attorneys, negotiate on your behalf with the OPD Complaint Review Board whenever possible. Strategic settlements or consent agreements can lessen the possibility or severity of sanctions, conditions, suspensions, or, in the worst-case scenario, license revocation.

When warranted, we consult with or arrange for expert witnesses to provide testimony or opinions that support our defense, such as expert evaluations on clinical practices or standards of care.

Third-party Subpoenas for Records or Testimony

Therapists are facing an unprecedented number of subpoenas involving records requests, deposition testimony, and even court testimony. While this increase in subpoena activity is due to a range of factors, often it may involve a divorce or child custody proceeding or a patient seeking damages related to emotional distress in a lawsuit.

Subpoenas arrive with an expedited deadline requiring the production of treatment records in short order. This imposes a significant burden on mental health providers concurrently engaged in the day-to-day management of clinical case-loads and small business demands.

Subpoenas present ethical quandaries between legal mandates and patient confidentiality and privacy rights. The response must be swift to assure compliance with the required turnaround time.

The attorneys at Schaupp McDermott will take quick and effective action on behalf of clinicians or group practices served with a subpoena. The first step is determining whether the subpoena is valid on its face, and accompanied by the requisite HIPAA consent. Absent patient consent, a subpoena for non-party records or testimony must be ”so ordered” by a judge with a signature from the judge, the designated state or federal authority.

Responding to an invalid subpoena paradoxically creates legal exposure for any response by a therapist, if the patient’s records are released absent appropriate authorization. The clinician must take care not to breach patient confidentiality. This creates a double-bind for mental health practitioners, as failing to respond to a valid subpoena comes with legal liability for the recipient whereas responding to an invalid subpoena presents exposure to claims of breaches of confidentiality before a licensing board or other legal venue.

The first step in such cases is securing competent counsel. At Schaupp McDermott, we can expertly assess the validity of the subpoena served, often communicating with issuing counsel to ensure compliance with all legal requirements, any protective orders imposed by the court, and a smooth, efficient, and timely response to the required deadline.

In cases seeking testimony, deposition preparation is essential. Appearing for testimony is stressful, and helping mental health providers understand the scope of their role as a non-party witness, and not a forensic expert or advocate is crucial.

Speak with a Lawyer about Your Licensing or Disciplinary Matter

In matters involving allegations of professional misconduct or non-party subpoenas, the smallest details can make a difference. At Schaupp McDermott, we provide compassionate and comprehensive legal representation to ensure your patient’s rights and your professional career remain protected. Contact us today to learn how we can assist you.