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Seven Things To Know When You Receive A Notice Of Investigation From The Department Of Health

Objections to DOH and AHCA Subpoenas


by George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Physicians, licensed mental health counselors, psychologists, dentists, pharmacists and other licensed health professionals in Florida often receive subpoenas issued by the Florida Department of Health (DOH) or the Agency for Health Care Administration (AHCA) for the confidential medical records of their patients.  These will often be issued at the request of a departmental investigator (or “surveyor”) to be used in an investigation of a complaint filed against the health provider or another health provider.  In most cases, these will be responded to by the one upon whom the subpoena is served without any thought or question.  However, most health providers are unaware that neither the DOH nor AHCA have the authority under Florida law to enforce such subpoenas.  Unlike criminal law enforcement authorities (such as the police,  sheriff’s office, Medicaid Fraud Control Unit (MFCU) or Office of the Attorney General), in order to enforce a subpoena, the DOH or AHCA must actually petition a state circuit court and obtain a court order from a judge to enforce the subpoena and to obtain the records.

The Florida Department of Health (DOH) licenses and regulates all licensed health professionals.  It is headed by the Florida Surgeon General (previously called the Secretary of the Department of Health).  He or she is a licensed physician.

The Florida Agency for Health Care Administration (AHCA) licenses and regulates all health facilities, including hospitals, ambulatory surgical centers (ASCs), skilled nursing facilities (SNFs), assisted living facilities (ALFs), home health agencies (HHAs) durable medical equipment (DME) providers, nurse registries, health care clinics (HCCs).  An exception is pharmacies which are licensed by and regulated by the DOH.

In the case of the DOH, an investigator (who are often titled “Medical Quality Assurance Investigator” or “Medical Malpractice Investigator”) who is investigating a complaint filed against a licensed health professional may seek and obtain a subpoena executed by the Florida Surgeon General (formerly the Secretary of the Department of Health) to obtain medical records, billing records or other documents to use as evidence in the investigation.  The investigation may have been opened based upon the complaint of someone other than the patient whose records or documents are sought.  We have experienced subpoenas seeking medical records of a patient in investigations opened based on a complaint filed by a relative, a son or daughter, an ex-spouse, an insurer, an ex-employer, a newspaper, and others who were not the patient.

Section 456.071, Florida Statutes, provides the limited authority that is granted to the DOH by the state legislature.  This states in its entirety:

Power to administer oaths, take depositions, and issue subpoenas.—For the purpose of any investigation or proceeding conducted by the department [Department of Health], the department shall have the power to administer oaths, take depositions, make inspections when authorized by statute, issue subpoenas which shall be supported by affidavit, serve subpoenas and other process, and compel the attendance of witnesses and the production of books, papers, documents, and other evidence. The department shall exercise this power on its own initiative or whenever requested by a board or the probable cause panel of any board. Challenges to, and enforcement of, the subpoenas and orders shall be handled as provided in s. 120.569[, Florida Statutes].

Note that the legal authority given by this law to issue a subpoena is different from the authority to enforce a subpoena.

In more than one instance we have experienced subpoenas seeking medical records of multiple patients based on complaints of insurers or other third party payers attempting too avoid paying for medical care for which they were obligated to pay.  We have seen subpoenas seeking medical records of multiple patients pain management patients based on complaints by the state Medicaid Program or by someone alleging the physician is systematically over-prescribing pain medications.  We have had first hand experience in cases where psychotherapy patients’ medical records were subpoenaed in a complaint filed by a third party payer seeking to have the psychotherapist put out of business so it would not have to pay for the care she was providing.  We have seen investigations in which large numbers of patient records were sought because of allegations concerning over-prescribing, improper treatment, lack of medical necessity or just (what we would call) “fishing expeditions” seeking to find evidence of wrong-doing where there was none.  We have encountered a number of cases in which parents involved in custody disputes in family law court cases have filed DOH complaints resulting in mental health records of the other spouse being sought for use against him/her.  Although these may be aberrant cases, this is our opinion based on our experiences in this are of the law.  In many of these cases, when contacted, the patients whose records were subpoenaed refused to authorize the release of their records and objected to their being released to or used by the DOH.

In order to obtain a DOH subpoena issued by the Florida Surgeon General, a DOH investigator or other official should provide an official written request supported by an affidavit.  These subpoenas are issued pursuant to Chapter 456, Florida Statutes, and Chapter 120, Florida Statutes.  The law requires that such subpoenas should only be issued upon a showing that there is reasonable cause that an offense has been committed (usually by the health provider whose records are being sought) and that the medical records being sought contain evidence of a violation of an applicable law or rule. 

According to Florida law:

Any person subject to a subpoena may, before compliance and on timely petition, request the presiding officer having jurisdiction of the dispute to invalidate the subpoena on the ground that it was not lawfully issued, is unreasonably broad in scope, or requires the production of irrelevant material.

Section 120.569(2)(k)1, Florida Statutes.  This establishes the three broad grounds or objections that can be legally made to a subpoena issued by the DOH (or AHCA).  These are:

  1. That the subpoena was not lawfully issued, for example, that a proper affidavit was not made to support it, that production of the records in response to the subpoena violates some other law or rule, or that the complaint made is not legally sufficient as required by Section 456.073(1), Florida Statutes.
  2. That it is unreasonably broad in scope, for example other patients’ records are being sought when the complaint and investigation only involves the care or treatment of one patient.
  3. That the subpoena requires the production of irrelevant material, for example, if the complaint involves an allegation of substandard medical care for a certain patient but the billing records or medical records of other patients are being sought.

In order to protect privacy and confidentiality of the patients whose records are sought, especially ones who did not complain and whose care is not the subject of the investigation, the health provider (or its attorney) may file an objection with the DOH and state the grounds upon which the objection is based.  If this occurs, the matter will usually be referred back to the Surgeon General for subsequent review and decision.  What then follows is usually a decision or an Order from the Surgeon General requiring that the records be produced.  However, just as with the original subpoena, the Order is not enforceable unless the DOH petitions a state circuit court, and a circuit court judge issues an order, after a hearing on the matter.  This is done pursuant to Section 120.569(2)(k)2, Florida Statutes.  The DOH is required to file a petition for enforcement in the county in which the health provider is located or is a resident, usually making these far easier to defend against by the health provider.  The litigation is confidential and may be a long, drawn-out process.  Additionally, state circuit court judges are often inclined to rule in favor of the patient’s privacy and against the DOH.

Carrow v. Dep’t of Professional. Reg., 453 So. 2d 842 (Fla. 1st DCA 1984) and Nathanson v. Dep’t of Labor & Emp. Security, 620 So. 2d 1066 (Fla. 1st DCA 1993) both stand for the long-established proposition that the subpoena of an administrative agency may not be enforced, without following the procedures required by Section 120.569(2)(k)2, Florida Statutes.

The Department of Health sometimes cites Community Healthcare Centerone, Inc. v. State of Florida, 852 So. 2d 322 (Fla. 4th DCA 2003), rev. denied, 868 So. 2d 522 (Fla. 2004), as authority that allegedly supports its authority to enforce a subpoena.  Reliance on Community Healthcare case is misplaced.  It does not apply.

Community Healthcare involved a criminal investigation for Medicaid fraud pursuant to Chapter 409, Florida Statutes.  The subpoena in Community Healthcare was issued by the Office of the Statewide Prosecutor, a criminal law enforcement agency with the authority to investigate criminal Medicaid fraud allegations.  The subpoena in Community Healthcare specifically sought records of Medicaid recipients from a Medicaid provider pursuant to Section 409.920(7), Florida Statutes.  Additionally, Chapter 409, Florida Statutes, does not require any physician who is not a Medicaid physician and who has not agreed to the terms of the Medicaid Program, to furnish such information and records, much less to the Department of Health.

The law is clear that the Surgeon General and the Department of Health do not have the same authority as the Office of the Statewide Prosecutor.  The law is also clear that the Surgeon General and the Department of Health do not have independent enforcement authority for such subpoenas.  Neither Chapter 456 nor Chapter 120, Florida Statutes, grants the Department of Health or the Surgeon General independent authority to enforce the subpoena at issue.

If the factual and legal grounds exist for objecting to or opposing a subpoena issued by the DOH, then a health provider may desire to file and objection and not produce the records being sought.  A sample of such an objection is attached [click here].  It should be filed with the Agency Clerk of the Department of Health and a copy served on the DOH investigator to whom the records are to be produced.  It should be filed before the due date for producing the records, if at all possible.

Upon receipt of an Order from the Surgeon General denying the objection, an objection or exception to the Surgeon General’s Order should also be filed.  A sample is attached [click here].

Although I have not included a detailed discussion of subpoenas issued by AHCA to health facilities.  The same principles apply.  An objection would be filed with the Agency Clerk of the Agency for Health Care Administration in Tallahassee, as well as served on the investigator or official to whom the records are to be produced.

If you receive a subpoena, do not delay or attempt to object yourself.  Retain the services of an experienced health attorney who also is experienced in both civil litigation and administrative litigation.

About the Author

George F. Indest III, J.D., M.P.A., LL.M., is the President and Managing Partner of The Health Law Firm, offices in Altamonte Springs, Orlando and Pensacola, Florida.  He is admitted to practice in Florida, Louisiana, District of Columbia and a number of state and federal courts.  He is Board Certified by The Florida Bar in the legal specialty of Health Law.  Website:  1101 Douglas Ave., Altamonte Spr., FL 32714, (407) 331-6620.

(revised 2/28/2012)
This is for information and educational purposes only and does not constitute legal advice.  Always check for changes and updates in the laws and regulations.

© Copyright 2012 George F. Indest III, Board Certified by The Florida Bar in Health Law, The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, Florida 32714. Phone: (407) 331-6620. All rights reserved.