COURT OF APPEALS OF VIRGINIA
Present: Judges Hum phreys, Haley and Petty Argued at Salem, Virginia

JEFFREY HAIRSTON OPINION BY v. Record No. 0686-06-3 JUDGE WILLIAM G. PETTY JUNE 19, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Charles J. Strauss, Judge Mark T. Williams (Williams, Morrison, Light and Moreau, on brief), for appellant. Eugene Murphy, Senior Assist ant Attorney Gene ral (Robert F. McDonnell, Attorney General, on brief), for appellee.
A jury convicted Jeffre y Hairston of five counts of indece nt liberties with a person with whom he had a custodial relationsh ip in violation of Code § 18.2-37 0.1, and five counts of carnal knowledge, in violation of Code § 18.2-63. Hairston challenges his convictions, arguing that the trial court erred when it quashed his subpoena duces tecum seeking the victim’s counseling records from Dr. Sue Bendewald and her employer, Whole Counsel Associat es. For the reasons stated below, we disagree with Hairst on, and affirm his convictions.
I. B ACKGROUND On appeal, we view the evid ence in the light most favora ble to the Comm onwealth, the party prevailing below, and grant to it all reasonab le inferences fairly dedu cible from the evidence. Ragland v. Commonwealth , 16 Va. App. 913, 915, 434 S.E.2d 675, 676-77 (1993). So viewed, the record shows that Hair ston issued a subpoena duces tecum seeking the victim’s counseling records from Dr. Bendewald. Specifically, Hairston requeste d “copies of all notes, including but not limited- 2 - to progress notes; copies of all therapy reports, copies of all ev aluations and diagnosis; records of all statements made by [the victim].” The subpoena duces tecum was supported by an affidavit, and Hairston properly noticed the Commonwealth’s attorney. Th e Commonwealth moved the trial court to quash the subpoena duces tecum

. At a hearing addressing the motion to quash, the Commonwealth’s attorney explained that Dr. Bendewald had called him about the subpoena because “she was concer ned that the subpoena did not comply with the HIPAA 1 requirements of giving notice to the victim and [giving the victim] an opportunity to move to quash” the subpoena duces tecum . The Commonwealth also argued that the subpoena duces tecum was a “fishing expeditio n” and was improper under our decision in Farish v. Commonwealth , 2 Va. App. 627, 346 S.E.2d 736 (1986). The trial court quashed the subpoena duces tecum . Following a jury trial, Ha irston was convicted and senten ced to a total of forty years imprisonment. This appeal followed.
II. A NALYSIS We hold that the trial court correctly quashe d the subpoena duces tecum because it did not comply with Code § 32.1-127.1:0 3, which governs the privacy of health re cords in Virginia. 2 We analyze the trial court’s interpreta tion and application of a statute de novo

. Ainslie v. Inman , 265 Va. 347, 352, 577 S.E.2d 246, 248 (2003).

1 HIPAA refers to a federal statute, the H ealth Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d et seq. HIPAA does not govern the issuance of subpoenas under state law, but Virginia has enact ed its own statute governing the pr ivacy of health records. The Virginia Health Records Privacy Law, as discussed infra , specifically discusses the requirements for obtaining medical or counseling records pursuant to a subpoena duces tecum and was cited in the parties’ briefs and at oral argument in this case.

2 Because we affirm the trial court’s decision on these grounds, we need not discuss whether the subpoena duces tecum properly sought relevant information.- 3 - A. Application of Code § 32.1-127.1:03 In coming to this conclusion, we must initially determine wh ether Code § 32.1-127.1:03 pertains to the subpoena at issue before us. The st atute recognizes a patient’s right of privacy in the content of his or her medical records. Code § 32 .1-127.1:03. Subsection A of the statute states, “except when permitted or re quired by this section or by other provisions of state law, no health care entity, or other person working in a health care setting, may disclose the records of a patient.” Id. Subsection B of Code § 32.1-127.1:03 defines “health care entity” as, inter alia , a “health care provider.” In turn, “health care provider” is defined as one of “those entities listed in the definition of ‘health care provid er’ in § 8.01-581.1.” Id. The term “health care prov ider” as defined in Code § 8.01-581.1 includes clinical psychologists, clin ical social workers, a nd professional counselors. Subsection D carefully delineates under what circumstances a health care entity may release health records, including, as pertinent to this case, “[i]n co mpliance with a subpoena issued in accord with subsection H.” Code § 32.1-127.1:03(D). Subsection H applies very broadly, stating that “ no party . . . to a criminal . . . action or proceeding shall request the issuance of a subpoena duces tecum for another party’s health records [or those of a nonparty witness] . . . ” unless that party complies w ith the requirements of Subsection H. Code § 32.1-127.1:03(H) (emphasis added). We conclude that Code § 32.1-127.1:03 appl ies in this case. Dr. Bendewald was employed by a counseling center, and the type of records sought from her related to her counseling sessions with the victim , a nonparty witness in this case. 3 See Code § 32.1-127.1:03(B) (defining “health record” as “t he substance of any communication made by an individual to a health care enti ty in confidence during or in connection with the provision of

3 We also note that Hairston conceded at oral argument that Dr. Bendewald is a health care provider within the m eaning of the statute.- 4 - health services . . .” and “p sychotherapy notes” as “comments, recorded in any medium by a health care provider who is a ment al health professional, documen ting or analyzing the contents of conversation during [counseling]”). Thus, Code § 32.1-127.1:03 applies to the subpoena duces tecum in this case. B. Hairston’s Subpoena Duces Tecum Next, we address whether Hairston met th e statutory requirements for a subpoena duces

tecum seeking medical or couns eling records. Our review of the record indicates that, instead of complying with the specific requirements of Code § 32.1-127.1:03, Hair ston only complied with the general requirements of Rule 3A:12(b): it was supported by an affidavit and it properly noticed the Commonwealth’s attorney. 4 However, when seeking medical or counseling records, counsel must comply with the applicable, spec ific privacy provisions of Code § 32.1-127.1:03, as well as the general requi rements of Rule 3A:12(b). This Court has never explicitly addressed whether subpoenas duces tecum must comply with Code § 32.1-127.1:03 ; however, the plain language of th e statute requires that they do so. When interpreting a statute, we must “apply the plain language of a statute unless the terms are ambiguous, or applying the plai n language would lead to an absurd result.” Boynton v. Kilgore , 271 Va. 220, 227, 623 S.E.2d 922, 925-26 (2006) (citations omitted). We are also responsible to “‘ascertain and give effect to the intention of the legislature’” whic h is “usually self-evident from the words used in the statute.” Id. at 227, 623 S.E.2d at 925-26 (quoting Chase v.

4 Rule 3A:12(b) states: Upon notice to the adverse part y and on affidavit by the party applying for the subpoena that the requested writings or objects are material to the proceedings and are in the possession of a person not a party to the action, the judge or the clerk may issue a subpoena duces tecum for the production of writings or objects described in the subpoena.- 5 - DaimlerChrysler Corp. , 266 Va. 544, 547, 587 S.E.2d 521, 522 (2003)). This statute is not ambiguous, and the application of its provision s will not lead to an absurd result. On the contrary, Code § 32.1-127.1:03(H) clea rly sets out specific conditions for the issuance of such a subpoena, including: (1) providing a copy of the subpoena duces tecum to a nonparty witness; (2) providing a nonparty witnes s with a “Notice to Patient,” informing the witness of his or her right to f ile a motion to quash with the cler k of court; and (3) providing the health care entity a “Notice to Prov iders,” advising the entity that if it receives notice of a motion to quash or if it moves to quash, it must provide the records to the clerk of court in a sealed envelope. The General Assembly clearly expressed its intent that “nonparty witnesses,” like the victim in this case, be notified that their medical records are bei ng sought in discovery, that they receive information concerning their right to move the trial court to qu ash the subpoena seeking those records, and that health car e entities be instructed on how to protect their patients’ privacy during a legal proceeding. It is apparent from an examination of the subpoena duces tecum included in the record before us that Hairston ma de no attempt to meet the requirements of Code § 32.1-127.1:03(H). The subpoena does not include any of the required notices, and the record reveals that Hairston did not notif y the victim that he was seek ing her counseling records, as required by the statute. Based on these facts, we conclude that the trial court was correct in quashing the subpoena duces tecum

. C. Relationship between Rule 3A:12(b) and Code § 32.1-127.1:03 Finally, we address the relationship betw een Rule 3A:12(b) and Code § 32.1-127.1:03. Code § 8.01-3 empowers our Supreme Court to pres cribe the rules of pract ice and procedure for the courts of this Commonwealth; however, it also provides, in pertinent part, that the General Assembly “may, from time to time, by the enactmen t of a general law, modify or annul any rules- 6 - adopted or amended pursuant to this section. In the case of any variance between a rule and an enactment of the General Assembly such variance shall be construed so as to give effect to such enactment.” Code § 8.01-3(A), (D). Further, ou r Supreme Court has determined that “there is no variance” between a rule and a statute when both “provisions seek to promote” the same policy. Waterman v. Halverson , 261 Va. 203, 206-07, 540 S.E.2d 867, 868-69 (2001); cf

. Capelle v. Orange County , 269 Va. 60, 65, 607 S.E.2d 103, 105 (2005) (noting the basic principle of statutory inte rpretation that when one statute addresses a subject in a general manner and another addresses a part of the same subject in a more specific manner, the two statutes should be harmonized, if possible, and wh en they conflict, the more specific statute prevails). Here, we determine that there is no co nflict between Rule 3A:12(b) and Code § 32.1-127.1:03. Like the pr ovisions at issue in Waterman , these provisions both seek to promote the same policy: here, the orderly issu ance of subpoenas duces tecum . Thus, we read the rule and the statute in harmony, and conclude that while the statute in no way “nullifie[s] or invalidate[s] any portion of the rule,” Waterman , 261 Va. at 207, 540 S.E.2d at 869, the statute creates a specific proced ure that parties seeking medical or counseling records must follow. We therefore conclude that even when, as here, a subpoena duces tecum complies with Rule 3A:12(b) and follows the form of the sample subpoena duces tecum included in the appendix to the rules of court, it will not be sufficient to re quest medical or counselin g records in light of Code § 32.1-127.1:03.
III. C ONCLUSION For the reasons discussed in this opinion, the trial court correctly quashed the subpoena duces tecum seeking the victim’s counseling records. We affirm Hairston’s convictions. Affirmed.