OBTAINING INFORMATION BY COMPULSORY PROCESS

(a) Compelling Disclosure of Health Care Information when Authorized Request Denied by Health Care Provider. Where an authorized request by a Patient for the disclosure of health care information is denied by a health care provider, pursuant to HIPAA, Montana law or other applicable law, the Director or the Chairperson, if one has been 9 selected, may order disclosure of health care information, with or without restrictions as to the information’s use in the Panel hearing only, as the Director or Chairperson deems necessary and appropriate, subject to an allowance for any party being provided a full opportunity for district court review of the Director’s or Chairperson’s decision. (b) Process to Compel Disclosure by Health Care Provider. (1) When determining whether to order a health care provider to disclose health care information to the Panel, the Director or Chairperson shall consider the explanation provided to the Panel by the health care provider for denying an authorized request for disclosure and any arguments presented by interested parties. (2) After considering the explanation and arguments of the parties, the Director or Chairperson shall either enter an order requiring the health care provider to disclose the information or an order stating that the information shall not be sought by compulsory process by the Panel. (3) The health care information, if any, that is received by the Panel pursuant to an order requiring disclosure of health care information, shall be furnished by the office of the Director to the Panel members prior to the hearing, and each Panel member and party shall be notified of the decision of the Chairperson or Director and availability of the health care information for Panel purposes. (c) Process for Compelling Disclosure of Records or Information. (1) If a party claims that medical or other records or information which pertain to the claim are in the possession, custody and control of another party or persons other than a party or in the possession of health care providers from whom the Claimant has failed to execute an authorization for disclosure of health care information, a party who seeks such records and information may move the Director or Chairperson to: (i) compel the Claimant to execute an authorization for disclosure of health care information as to the health care provider, or (ii) compel the party or persons in possession of the records or information to produce the information to the Panel. (2) A request for the Panel to compel production of records or disclosure of information shall be made in writing and served on the Director, and the Chairperson if one has been selected, at the office of the Director, describing the records or information and stating how the records or information pertain to the claim, along with the name, address and other pertinent contact information of the person, persons, or entity believed to be in possession or control of the records or information, to the extent that such information is known to the requesting party. (3) A request to compel the disclosure of health care information, including the production of medical records, shall: (i) comply with the notice requirements of §§ 50-16-536(1) or 50-16-812(1), MCA, and provide proof of compliance with applicable law to the Panel, (ii) file with the Panel the written certification required by §§ 50-16-536(2) or 50-16- 812(2), MCA, (iii) comply with all other applicable requirements for the compulsory process of health care information, including protected health information (PHI) as defined by HIPAA, 10 under applicable law and provide proof of compliance with all such requirements to the Panel, and (iv) request the issuance of a subpoena by the Director or Chairperson, if one has been selected. (4) After receiving a request from a party that complies with the requirements set forth in this Rule 9, subsections (c)(1) through (c)(3), the Director or Chairperson, if one has been selected, shall issue a subpoena for all records and/or information requested that pertain to the claim, unless relieved of the responsibility of doing so by order of a district court. (d) Reporting of Results of Compulsory Process. The Panel shall report to the parties whether or not records or information are obtained by the Panel pursuant to compulsory process, including any denial of production of records or disclosure of information made by the person or persons upon whom a subpoena is served and the reasons for the denial provided by the person or persons. (e) Costs. The costs associated with the service of subpoenas at the request of a party for the purpose of obtaining information other than health care information relevant to the Panel hearing, along with any costs associated with obtaining or compelling witness testimony of any witness that is not a party to the Panel hearing, including statutory witness fees, shall be at the expense of the party seeking the service or the appearance of the witness.