As published in the March 2015 edition of Tennessee Dental Association News

If an investigator for the Board of Dentistry shows up at my office, what documents can he require me to provide that day? While an investigator may come to my office seeking specific information, can he look around and demand other information unrelated to what he originally sought? Am I required to provide such other, additional information?

Generally, you should cooperate with an investigator from the Board whenever possible. Failing to respond to a proper written request from the Board to make relevant records available with respect to an inquiry or complaint may be deemed to be “unprofessional conduct” which could subject you to discipline. See T.C.A. § 63-1-117(a) and Rule 0460-01-.12(12). You should try to stay on the “good side” of the investigator. But, you should also contact your lawyer if you receive a document request from a Board investigator, so your lawyer can advise you about your specific rights and obligations in the situation.

Generally, a request for documents from a Board investigator must be in writing. You must make your records available for inspection and copying by the Board and its investigator upon:

  • the presentation of written authorization for release signed by a patient whose records are being requested; or
  • a written request by the investigator who is performing an authorized investigation or inspection based on
    • an inspection required by state or federal law, or
    • a complaint filed with the Board.

The written request must state the nature of any alleged violation, the applicable laws and rules that may have been violated, and the specific date by which the documents must be provided. The request must also be made in good faith and must relate to the particular complaint or inspection. See T.C.A. § 63-1-117(a).

If a Board investigator comes to your office and decides he wants to inspect documents unrelated to the complaint he was initially investigating, a new complaint must first be filed with the Board. If such new complaint is filed by the investigator, it would be difficult for him to file it back at the Board office and also make all of the required allegations at his site visit that day. He must give you any new document request (unrelated to the initial complaint) in writing, state the alleged violation, the applicable laws and rules that may have been violated, and also give you a date by which you must provide the documents. The request must be in good faith and must relate to the specific (new) complaint

Subpoenas are more formal than mere “requests” and are sometimes used by the Board to collect documents. The use of subpoenas is to be strictly construed, and they are not to be randomly issued. In fact, the Board states that the purpose of its Rule on subpoenas is to allow dentists to “be free to comprehensively treat and document treatment of their patients without fear that the treatment or its documentation will be unduly subjected to scrutiny outside of the profession.” “It is the intent of the Board that the subpoena power outlined herein shall be strictly construed. Such power shall not be used by the Division or Board investigators to seek other incriminating evidence against dentists when the Division or Board does not have a complaint or basis to pursue such investigation. Thus, unless the Division or its investigators have previously considered, discovered, or otherwise received a complaint from either the public or a governmental entity, no subpoena as contemplated herein shall issue.” See Rule 0460-01-.06(7)(a).

Thus, a Board investigator cannot go on a fishing expedition seeking evidence on matters unrelated to the initial complaint which he goes to your office to investigate. For a subpoena – which is more formal than a written request – to be issued, certain procedures must be followed by the Board and its investigators. An investigator himself cannot issue a subpoena, but he could make a written request for documents. See T.C.A. § 63-5-124(f) and Rule 0460-01-.06(7)(c)2.

To summarize, while you should generally cooperate with any Board investigation, an investigator should not be allowed to review or request documents unrelated to the complaint for which he has come to your office. The law sets some limits and procedures he must follow.

As a side note, with all document requests and administrative subpoenas, you must always consider and comply with HIPAA requirements, even if the person making the document request does not. If a written request or subpoena seeks protected health information and you do not have a signed written release from the patient whose information you would be releasing to comply with such request or subpoena, the party seeking the documents should attach a statement to the request or subpoena affirming that the information sought is (a) relevant and material, (b) specific and limited in scope to the extent reasonably practicable in light of the purpose for which it is sought, and that (c) de-identified information cannot reasonably be used. See 45 C.F.R. § 164.512(f)(1)(ii)(C) and interpretations on Health Information Privacy from the U.S. Department of Health & Human Services. Even with a written request or subpoena, patient health information must be protected, to the extent reasonably possible.