GN DAL03330.015 Dallas Guidelines on Subpoenas and Court Orders (TN 1 - 8/2003)
See GN 03313.000, GN 03314.000
SSA DOs and DDSs are frequently served with subpoenas or court orders that purportedly require SSA and DDS employees and medical consultants to produce and possibly testify about information concerning a specific number holder (NH) contained in the agency's system of records or to testify about their observations on a claimant or about SSA programs.
Subpoenas requesting the personnel records of SSA/DDS employees are outside the scope of this transmittal. Such subpoenas should be faxed immediately to the Center for Human Resources in the Dallas Regional Office. Similarly, this transmittal does not address the handling of a summons, a document that signals the initiation of a lawsuit. If you receive a summons, please follow the instructions in GN 03106.020.
1. The difference between subpoenas and court orders
A subpoena is usually issued by an attorney, the clerk of a court at an attorney's request, or a courts record company on behalf of the attorney. When documents are requested, the subpoena is usually designated as a “subpoena duces tecum.” Subpoenas issued to SSA DOs or DDSs usually direct a “custodian of records” or a specific employee to produce records at a deposition in an attorney's office or in court, and perhaps to provide testimony regarding those records. Less often, the subpoena will only direct the employee to testify regarding general SSA program matters or the employee's knowledge of a claimant or beneficiary.
Usually, a deposition is simply a “records deposition,” in which the SSA employee states under oath that the records produced are from the file of the NH. An attorney may specify in a cover letter accompanying the subpoena that if the records are provided prior to the time of the deposition, appearance at the deposition is unnecessary.
A judge, on the other hand, must sign a court order. A subpoena signed by the clerk of a court is not a court order. The number of court orders that DOs receive is very small compared with the number of subpoenas received.
2. Differentiating between the two main types of subpoenas and court orders
Subpoenas and court orders may be grouped into two categories, depending on the type of information requested. Different regulations apply to each.
a. Personal program information from the files of a Social Security beneficiary, claimant, wage earner, or other NH.
Disclosure of this information is subject to Regulation No. 1 (20 C.F.R. Part 401). In general, such information cannot be disclosed without the affected individual's written consent unless a routine use provides for its disclosure, the Commissioner of Social Security is a party to the proceeding, or the information is necessary for due process in a criminal proceeding. See GN 03305.001B for discussion of disclosure with consent.
b. Nonpersonal program information (whether or not it is related to a specific NH's record), or personal information about a NH gained through the performance of official duties.
Some subpoenas and court orders simply request an SSA employee to testify about program matters in general, such as the disability determination process; program matters as they relate to a specific NH; or the employee's observations of a specific NH.
3. Revised Touhy regulations
Effective April 13, 2001, revised regulations prohibit testimony by SSA/DDS employees in most third party suits (cases in which SSA is not a party). These requests, which are often called “Touhy” requests after a Supreme Court case of that name, are governed by the regulations at 20 C.F.R. 403, rather than 20 C.F.R. Part 401. See U.S. ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). Touhy Regulations were revised and published in the Federal Register on January 12, 2001. See 66 Federal Register 2805 (2001). For SSA purposes, the revised regulations replace those found at 45 C.F.R. § 2.1 et seq. (2000), which still apply to the Department of Health and Human Services.
Under the revised Touhy regulations, in legal proceedings where SSA is not a party, testimony by an employee of SSA is not permitted unless prior approval has been granted by the Commissioner or his designee, the General Counsel. Testimony for these purposes includes any sworn statement, either oral or written. (This restriction also applies to SSA employees signing the affidavits that many attorneys and court records companies send to be attached to a copy of the claims folder.)
Exceptions to these regulations apply where Congress has made the testimony request; where the employee appears in court in a private capacity; or where the employee is appearing as an expert witness in connection with professional and consultative services as an approved outside activity. See GN 03330.015 and EM-01066REV, dated April 18, 2001, for more information. Additionally, these regulations do not apply to requests for testimony in Social Security appeals when requested by SSA Administrative Law Judges. See GN 03103.160.
NOTE: The Touhy restrictions on testimony in third party litigation also applies to DDS employees, DDS medical consultants, former SSA employees, and agents of SSA.
B. Procedures to follow upon receipt of a subpoena or court order
Accept service of the subpoena or court order unless a specific exception applies.
Subpoenas must be accepted if a recipient is not specified. This includes subpoenas directed to an unnamed person such as “Manager” or “Custodian of Records”. However, do not accept a subpoena or other compulsory process requiring disclosure of information if the document is directed simply to SSA, its Commissioner, or any Central Office official. Inform the person serving the subpoena or court that you lack authority to accept it; see GN 03330.010.B.2.
NOTE: If a specific employee is named in the subpoena (e.g., the DO manager or a CR), and that person is not in the office at the time service is attempted, another employee should not accept the subpoena on the other person's behalf. This is not a “refusal” to accept a subpoena, because a subpoena that names a specific person can only be properly served on the named person.
Do not transfer subpoenas to other DOs or other SSA components; see GN 03330.010.B4.
With respect to subpoenas received in the mail, employees should not sign a waiver of personal service. SSA requires personal service. This does not mean, however, that you can disregard such subpoenas; you must follow the instructions outlined below.
Record the receipt of the subpoena or court order and all pertinent information.
Attached is a Subpoena Questionnaire to use in recording pertinent information from the subpoena (and cover letter, if one accompanies the subpoena) or court order. This form assists you in relaying information to the RO. Please reproduce the form locally as needed.
Immediately fax the subpoena or court order, the Subpoena Questionnaire, and any other documentation to Center for Disability (CfD) in the Dallas RO at FAX (214) 767-1452.
Please send the attached Subpoena Questionnaire, the subpoena or court order, cover letter, and any consent form to the attention of John Martin (telephone: (214) 767-4283) or his backup, Ed Hromatka (telephone: (214) 767-2169). The CfD will review the subpoena, consult with the Office of the General Counsel, determine what action needs to be taken, and advise the DO if it needs to do anything further.
C. Other DO/DDS responsibilities related to subpoenas and court orders
1. Claims folder location and retrieval
If the subpoena or order requires the production of records contained in the claims folder of a NH (such as disability records), the DO/DDS is responsible for ascertaining the location of the claims folder(s) and recording that information on the Subpoena Questionnaire. Do not delay referring the subpoena and the questionnaire to the RO. Also, do not request that the claims folder be transmitted to the DO until the RO instructs you to arrange for the transmittal.
2. Copying documents in a claims folder for certification
Under the Touhy Regulations, SSA does not provide testimony in court or at a deposition to authenticate copies of documents from a NH's claims folder. Rather, an official in the Dallas RO certifies the authenticity of the copies or, where appropriate, extracts from computer records. The DO is responsible for making and forwarding the copies and the claims folder to the Dallas CfD/RO in a timely manner. Similarly, the DO is responsible for copying the records in the claims folder of a deceased NH.
3. Instructing employees in the importance of reporting immediately the receipt of a subpoena or court order
A subpoena or court order is a legal document and must not be ignored. Therefore, it is essential for the DO/DDS manager to ensure that all employees understand the importance of reporting immediately the receipt of such a document, whether it is personally served or arrives in the mail. Further, any RO request for additional information or other assistance should be handled on a priority basis unless the DO is advised otherwise. Often the time between the service of the subpoena and the date for the appearance is extremely short, and action must be taken immediately to resolve the matter.
D. Responsibilities of the Dallas Regional Office
1. Responding to routine subpoenas
In certain uncomplicated situations, e.g., where service is proper and the only problem is the lack of the NH's consent, the Dallas CfD may telephone or write a letter to the attorney or other individual responsible for the issuance of the subpoena explaining the consent requirement.
2. Referring non-routine subpoenas and all court orders to OGC
If a subpoena cannot be easily resolved by CfD personnel, the CfD will refer the subpoena immediately to the Dallas OGC for consultation and/or resolution. In addition, Dallas CfD will refer all subpoenas for testimony and court orders to OGC.
3. Determining the validity of the consent
The Dallas CfD is responsible for determining if the written consent attached to the subpoena, provided by the individual whose records are sought, meets SSA's requirements. To be valid, GN 03305.001B.2.requires that a proper consent to disclosure must:
Be directed to SSA specifically;
State what information may be disclosed (with as much specificity as possible);
to whom the disclosure may be made;
the length of time the consent is effective; and
Be signed and dated by the NH or by someone who can provide consent for him/her.
If the Dallas CfD is at all uncertain whether the consent provided meets these basic criteria or the other requirements outlined in GN 03305.001, the Dallas OGC will be contacted.
4. Providing records in response to a subpoena or court order where the NH is deceased
SSA may generally disclose non-tax return information about a deceased NH so long as care is taken not to disclose information that would violate the privacy rights of a living person. Therefore, the CfD will review the deceased NH's folder to determine which records may be disclosed under the guidelines in GN 03315.010.
E. OGC responsibility
OGC will inform either the Dallas CfD or the DO as to the action taken. When OGC responds in writing, a copy of any letter or other document from OGC to the attorney who issued the subpoena or to the court will also be sent to the RO, which will then send a copy of the response to the DO.
SUBPOENA/COURT ORDER QUESTIONNAIRE
FAX to (214) 767-1452
Numberholder: _____________ SSN: ____- __- ________
Is the NH deceased? Yes ___ No ____
A child? Yes ___ No ____
Person reporting subpoena: ______________________________
Location: __________________ Phone: (_____) ______-_____
Date and time received: ______________________________________
Subpoena served: By mail? __ Or in person? __ By whom? __________________
If personally served, were you asked to sign a statement or form that acknowledges and/or accepts the subpoena? Yes ____ No ____
NOTE: If the subpoena arrived in the mail and included a waiver of personal service, do not sign and return the waiver.
Date: ______/ ______/ ______ Time: _________AM/PM
Place: Court? _______ Atty's Ofc? _______ SSA/DDS _____
If the attorney's name, address and phone number do not appear on the subpoena, call the clerk of the court. If the subpoena is from a small claims court, there probably will be no attorney.
Phone: (_____) ________- _________________
Is consent required to disclose the information requested? Yes __ No __
If yes, was a valid consent provided?
(See criteria in GN 03305.001): Yes ___ No ___
Title II ____________________________________________________
Title XVI ___________________________________________________
NOTE: Do not request transfer of the folder(s) unless a valid consent has been provided or the RO asks you to initiate retrieval.
Date and time the subpoena was faxed to Dallas CfD/RO (FAX 214-767-1452): _____/_____/______
Fax to the Dallas RO the subpoena and any accompanying documents, together with a copy of this questionnaire.
DALLAS CfD REFERRAL TO OGC
Referred to Dallas OGC on ____/___/____ (Date) at ___:____ AM/PM