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 FOs 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 FOs receive is very small compared with the number of subpoenas received.

Subpoenas and court orders may be grouped into two categories, depending on the type of information requested. Different regulations apply to each.

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 the 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.

If the subpoena or court order requires the production of records contained in the claims folder of a NH (such as disability records), the FO/DDS is responsible for ascertaining the location of the claims folder(s). Do not delay referring the subpoena and the questionnaire to the PAC in CDPS. Also, do not request that the claims folder be transmitted to the FO until the PAC instructs you to arrange for the transmittal.

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 FO is responsible for producing single side copies of permitted records, sanitizing/redacting copies, then forwarding sanitized copies via email to the PAC in Dallas CDPS in a timely manner. Contact information for the current PAC is listed on the Dallas CDPS Programs Support Topics list. Similarly, the FO is responsible for copying permitted records in the claims folder of a deceased NH.

A subpoena or court order is a legal document and must not be ignored; therefore, it is essential the FO/DDS manager ensures that all employees understand the importance of reporting immediately the receipt of such a document, whether it is personally served, faxed, or arrives in the mail. Further, when a PAC in Dallas CDPS requests a FO provide additional information or other assistance, this should be handled on a priority basis unless the FO 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.

In certain uncomplicated situations, e.g., where service is proper and the only problem is the lack of the NH's consent, the Dallas PAC may either telephone the requesting attorney or other individual responsible for the issuance of the subpoena or the PAC may instruct the FO to develop valid consent or explain the consent requirement to the requester.

At the discretion of the PAC in Dallas CDPS, a subpoena may be referred to OGC at ^OGC OGL Subpoenas for consultation and/or a formal letter of response. The PAC will refer all subpoenas for testimony and court orders to OGC.

The PAC in Dallas CDPS is responsible for determining and advising receiving FOs if the written consent, often attached to the subpoena, meets SSA's requirements in GN 03305.003.

The PAC may consult OGC if uncertain whether the consent provided meets the requirements.

SSA may generally disclose non-tax return information about a deceased NH as long as care is taken not to disclose information that would violate the privacy rights of a living person. Therefore, the PAC in Dallas CDPS will review requests for deceased NH's information to determine which records may be disclosed under the guidelines in GN 03315.010 and advise the FO on how to respond or process the request for non-tax return records. Generally, Central Office process requests for tax return records and SSN information about deceased individuals.