The dental attorneys at Nardone Limited in Columbus, Ohio routinely represent dentists in Ohio State Dental Board proceedings. If the Ohio State Dental Board has sent you an administrative subpoena, you should contact an experienced dental practice attorney to make sure you take the right steps and have proper representation before the Dental Board. This blog post serves to provide dentists with an overview of the due diligence steps that a dentist should take upon receipt of a subpoena.

When We Say an “Administrative Subpoena”, What Are We Talking About?

     Rule 4715-15-14 from the Ohio State Dental Board states that an administrative subpoena is a request to “compel the attendance and testimony of witnesses, and production of books, records and papers at the administrative hearing.” Each subpoena will indicate on whose behalf the witness is required to testify or produce documents. An administrative subpoena requests an individual to bring specific documents, including patient records, with them when they appear. Sometimes administrative subpoenas may also request only patient records, without requesting an appearance of the particular dentist or dental practice involved. If you receive a subpoena from the Ohio State Dental Board, do not ignore it. If you are served with a subpoena, you must timely respond to the subpoena. It is very important.

Guidance on How to Handle an Administrative Subpoena

     When you receive an administrative subpoena, it is always important to properly understand what the administrative subpoena is asking for, as well as what you need to produce and when.  Some guidelines to consider when handling an administrative subpoena include:

1. Establish Appropriate Procedures to Secure and Protect Records

It is important for a dental practice to have an established procedure for handling the receipt of subpoenas. Most dentists or dental practices have—or absolutely should have—a formal document retention policy that provides for the maintenance, storage, and orderly destruction of records. It is critical to identify those records that are potentially subject to a subpoena and prevent those records from being destroyed. An appropriate representative of the dental practice should take possession of records that have been subpoenaed so that they will not be altered or destroyed and secure them for safekeeping. Importantly, this includes not changing the chart or patient record, after receiving the subpoena.

2. Calendar Response Date

The dentist or dental practice should maintain a log that records the date and time when the subpoena was received and the date a response is due. An evaluation should take place to determine whether the subpoena can be handled in a routine fashion or there is a need to seek the assistance of legal counsel. It may be helpful to indicate that extra time is needed to retrieve records from a remote location due to staffing limitations or to obtain a legal review of the issues.  That decision should be made in consultation with an experienced dental attorney.

3. Consider Privacy Interests of Patients

If a subpoena seeks to obtain patient records that contain confidential health information or highly sensitive information, the dentist or dental practice may have to file a Motion to Quash with the court to object to the subpoena. But, in most instances, there is an exception under both federal and state law that allows the dentist or dental practice to properly and timely respond to the subpoena with the requested patient records.

4. Producing the Material

The dentist or dental practice should use care to make sure that when records are produced, the dentist can later demonstrate exactly what  records were produced and turned over to the Dental Board in response to the subpoena.  It is recommended that the documents be numbered prior to copying, and the number of pages recorded with a subpoena log so that a reviewing attorney or court can determine exactly what was produced and when.

     Since administrative subpoenas are not voluntary (i.e., you must respond or state a reason why you cannot), the dentist or dental practice must take great care in terms of responding, to avoid potential enforcement action by the Dental Board.

Due Diligence Steps to Take upon Receipt of an Administrative Subpoena

     From a practical perspective, the following steps should be taken as it relates to any administrative subpoena received by the dentist or dental practice.

1. Immediately contact and follow up with a dental attorney experienced in handling Dental Board matters.
2. Identify who the subpoena has been issued to and confirm that you are the appropriate recipient. 
3. Identify the subject matter of the subpoena, and specifically what has been requested. 
4. Identify the date that the dentist or dental practice must respond to that subpoena and schedule a reminder as it relates to that particular date.
5. Immediately take possession of any and all records both hard copy and electronic as it relates to the subpoena to ensure the records are maintained, not modified, not destroyed, and secured for future discussion with your dental practice attorney. 
6. Notify everyone in the office that they should take no further action as it relates to the requested records, and that no one should in any way modify, destroyed, or in any other way have contact with the requested records.
7. Identify one person within your dental practice to coordinate and communicate with the dental practice attorney. 
8. Work with and consider the advice provided by your dental practice attorney from this point forward as it relates to that administrative subpoena. 

Takeaways for Dentists upon Receiving an Administrative Subpoena

     The dentist or dental practice should absolutely take receipt of an administrative subpoena seriously.  Although in most cases, the investigation that is being handled by the Dental Board results in no action being taken, it is absolutely imperative that we properly and timely respond to the subpoena.  Further, do not take the receipt of an administrative subpoena lightly.  it is important to obtain the proper advice and think through the response prior to responding.  The point is, seek the appropriate advice.

Contact Nardone Limited

     Ohio State Dental Board proceedings can be complicated and can have some serious consequences. If the Ohio State Dental Board has contacted you or if you have questions about Ohio State Dental Board proceedings, you should contact an experienced dental practice attorney at Nardone Limited. Nardone Limited, a Columbus, Ohio law firm, provides specialized dental practice representation across the state of Ohio.

     The dental practice attorneys and business attorneys at Nardone Limited represent dentists in such diverse areas as: (i) buying and selling dental practices; (ii) asset purchase agreements; (iii) employment contracts; (iv) labor and employment representation; (v) human resource representation; (vi) Ohio State Dental Board representation; (vii) lease agreements; (viii) real estate purchase agreements; (ix) tax planning; and (x) estate planning. Contact Nardone Limited today to discuss your practice and how Nardone Limited may help you.