ORDERS:
STATEMENT OF THE CASE
This matter comes before me on the motion of the Petitioner, South Carolina Department of Health and Human Services (HHS) to quash the subpoena duces tecum issued by the South Carolina Department of Labor, Licensing and Regulation, State Board of Dentistry (LLR) to HHS. This Court has jurisdiction over this matter under S.C. Const. Art. I, S.C. Code § 40-15-185 (Supp. 2008) and Rule 22(B), Rules of Procedure for the Administrative Law Court. After proper notice, a hearing was held on April 21, 2009, at the offices of the ALC in Columbia, South Carolina into this matter.
On April 21, 2009, this Court heard oral arguments on HHS’ Motion to Quash. After considering the arguments and the law, the Motion to Quash is denied and LLR is ordered to obtain authorization from Patient A or his/her legal guardian to release all of information requested in the subpoena duces tecum within thirty (30) days of this Order. HHS is ordered to release all of the requested information within fifteen (15) days of the receipt of Patient A’s or his/her legal guardian’s authorization. If LLR fails to obtain the required authorization from Patient A or his/her legal guardian within thirty (30) days of this Order, all documents evidencing Patient A’s dental treatment from July 31, 2006 to April 9, 2007 shall be inadmissible in any contested case hearing on the Formal Accusation.
BACKGROUND
On November 26, 2007, LLR issued a Formal Accusation against Respondent, Anonymous Dentist, alleging violations of the South Carolina Dental Practice Act, S.C. Code §§ 40-15-10 et seq., based on Anonymous Dentist’s treatment of Patient A on August 8, 2006. The Formal Accusation is premised on LLR’s alleged review of records and photographs taken on April 9, 2007 by another provider in a separate dental practice.[1] The allegations appear to be based on the assumption that Patient A had not received any dental treatment between August 8, 2006 and April 9, 2007.
Anonymous Dentist alleges that HHS may have documents in its possession which evidence Patient A’s receipt of medical and dental treatment from a Medicaid provider other than Anonymous Dentist between August 8, 2006 and April 9, 2007. As a result, on December 18, 2008, Anonymous Dentist submitted a request for LLR to issue a subpoena duces tecum to HHS pursuant to S.C. Code § 40-1-80(B) (Supp. 2008). LLR issued the subpoena to HHS on or before January 5, 2009. On January 6, 2009, Anonymous Dentist, by and through his/her counsel, served the subpoena on HHS. The subpoena commanded HHS to produce certain documents related to treatment received by Patient A as described therein.
On February 11, 2009, HHS filed a Motion to Quash LLR’s Subpoena with this Court. In its motion, HHS argued that it is prohibited by law from releasing the requested information. On February 19, 2009, Anonymous Dentist filed his/her Response to HHS’ Motion to Quash. In that response, Anonymous Dentist argued that federal and state law permit HHS to release the requested information.
On February 26, 2009, HHS filed a Supplemental Memorandum in Support of its Motion to Quash. In its Supplemental Memorandum, HHS argued that the HIPAA rules on subpoenaing personal health information, which are contained at 45 C.F.R. §164.512(e), do not supersede the stricter Medicaid Rules contained at 42 C.F.R. §431.300 et seq. and S.C. Code Reg. 126-170 et seq. In addition, HHS argued that although its own “Notice of Privacy Practice” permits it to disclose the requested information, these practices are designed to accommodate the extreme circumstance and do not gainsay the expectation of privacy provided by the Medicaid Rules. On March 2, 2009, Anonymous Dentist filed a Response to HHS’ Supplemental Memorandum in Support if his/her Motion to Quash. In the response, Anonymous Dentist argued that (1) while HIPAA rules on subpoenaing personal health information do not supersede stricter federal law prohibiting a covered entity from disclosing protected health information, neither federal nor state laws provide for stricter disclosure requirements; (2) no federal or state statute or regulation prohibits HHS from releasing information in response to a court issued subpoena; and (3) federal and state law only require HHS to apprise the court of the existence of Medicaid regulations and any other confidentiality rules which apply.
DISCUSSION
The subpoena subject to HHS’ Motion was properly issued by LLR in accordance with state statute and the procedures governing professional disciplinary proceedings. I further find no federal or state statute or regulation prohibits HHS from releasing information in response to a court order. In fact, state regulations specifically permit HHS to disclose confidential information after a competent court orders the release of the information after being apprised of the existence of the confidentiality rules. S.C. Code Reg. 126-172; S.C. Code Reg. 126-173(E).
More importantly, it appears to be inherently unfair to bring charges against a dentist yet prohibit him from obtaining information that would be potentially exceedingly relevant to his defense. Therefore, in order to avoid any further needless review of this matter, I inquired of the parties present at the hearing if a proper resolution of this issue would be to require that Board of Dentistry obtain the consent of Patient A for release of the records. Both parties agreed that determination would be an appropriate resolution of this dispute. Therefore,
IT IS HEREBY ORDERED that the Board to obtain authorization to release the requested information from Patient A or his/her legal guardian within thirty (30) days of this Order. HHS is ordered to release the requested information within fifteen (15) days of the receipt of Patient A’s or his/her legal guardian’s authorization. If LLR fails to obtain the required authorization within thirty (30) days, all evidence of Patient A’s dental treatment from July 31, 2006 until April 9, 2007 shall being inadmissible at any contested case hearing on the Formal Accusation.
AND IT IS SO ORDERED.
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Ralph King Anderson, III
Administrative Law Judge
May 14, 2009
Columbia, South Carolina
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