In re Petition for Subpoenas

• Decision Date: 20 March 2007
• Docket Number: Docket No. 263959.
• Parties: In re PETITION OF ATTORNEY GENERAL FOR INVESTIGATIVE SUBPOENAS.
• Court: Court of Appeal of Michigan — District of US

736 N.W.2d 594

274 Mich. App. 696

In re PETITION OF ATTORNEY GENERAL FOR INVESTIGATIVE SUBPOENAS.

Docket No. 263959.

Court of Appeals of Michigan.

Submitted February 6, 2007, at Lansing.

Decided March 20, 2007, at 9:05 a.m.

Released for Publication August 1, 2007.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Amy L. Rosenberg and Susan Kay Balkema, Assistant Attorneys General, for the petitioner.

The Wolf Law Firm (by Allen M. Wolf) (Thomas M. Slavin, of counsel) and Robert Patrick George, Lake Orion, Mt. Clemens, for the respondent.

Before: WHITBECK, C.J., and BANDSTRA and SCHUETTE, JJ.

PER CURIAM.

Respondent appeals by leave granted an order granting petitioner's subpoena request, directing respondent to produce certain patient health information. We affirm.

I. FACTS

Respondent is a dentist. The Michigan Department of Community Health (MDCH) is conducting an investigation into allegations that respondent has engaged in insurance fraud. Acting on behalf of the MDCH, petitioner petitioned the circuit court for an investigative subpoena to procure "certain records, including but not by way of limitation all original dental charts and radiographs pertaining to" seven of respondent's patients. The court issued an order authorizing the subpoena. Respondent then moved to quash. The court granted the motion because of a facial defect, but allowed petitioner to reissue the subpoena under the existing order.

II. DISCLOSURE OF SUBPOENAED INFORMATION

Respondent first argues that the Health Insurance Portability and Accountability Act (HIPAA), 42 USC 1320d et seq., and regulations thereunder preclude disclosure of the subpoenaed information. We disagree.

A. Standard of Review

Statutory interpretation is a question of law we review de novo, Ayar v. Foodland Distributors, 472 Mich. 713, 715, 698 N.W.2d 875 (2005), as is the interpretation of administrative regulations, Lansing Mayor v. Pub. Service Comm., 470 Mich. 154, 157, 680 N.W.2d 840 (2004). This applies to the interpretation of federal statutes and regulations, see Andersen v. Director, Office of Workers' Compensation Programs, 455 F.3d 1102, 1103 (C.A.10, 2006), though reasonable administrative interpretations of regulations operating as statutory gap-fillers are entitled to deference, United States v. Mead Corp., 533 U.S. 218, 227-229, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). "Clear and unambiguous statutory language is given its plain meaning, and is enforced as written." Ayar, supra at 716, 698 N.W.2d 875.

B. Analysis

1. HIPAA

Subtitle F of Title II of HIPAA, PL 104-191, §§ 1171-1179, 110 Stat 2021-2034, 42 USC 1320d et seq., regulates patient information retained, used, and transferred by health care providers. In doing so, it authorizes regulations governing confidential patient information. See id., § 264, 110 Stat 2033-2034. Under this authority, regulations have been promulgated establishing procedures for the uses and disclosure of such information. See 45 CFR 164.502-164.534.

"Individually identifiable health information" (IIHI) is information "created or received by a health care provider" that "relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual," and that "identifies the individual" or regarding which "there is a reasonable basis to believe that the information can be used to identify the individual." 42 USC 1320d(6). "Protected health information" (PHI), with some exceptions not applicable here, is transmitted IIHI. 45 CFR 160.103.

Under federal regulations, a health care provider "may not use or disclose protected health information, except as permitted or required by" specified regulations. 45 CFR 164.502(a). 45 CFR 164.512(d) provides in part as follows:

(1) Permitted disclosures. A covered entity[¹] may disclose protected health information to a health oversight agency for oversight activities authorized by law, including audits; civil, administrative, or criminal investigations; inspections; licensure or disciplinary actions; civil, administrative, or criminal proceedings or actions; or other activities necessary for appropriate oversight of:

(i) The health care system.

A "health oversight agency" is

an agency or authority of . . . a State, . . . a political subdivision of a State . . ., or a person or entity acting under a grant of authority from . . . such public agency, . . . that is authorized by law to oversee the health care system (whether public or private). . . . [45 CFR 164.501.]

Under the unambiguous language of § 512(d), the circuit court did not err in concluding that HIPAA does not preclude enforcement of the instant subpoena. The MDCH is a statutorily created entity that oversees public health policy and management, and in that capacity is responsible for overseeing licensed health care professionals in Michigan. See MCL 333.16221 (granting investigative authority to the Department of Commerce); Executive Reorganization Order Nos.1996-2(I), 2003-1(IV)(A)(1) (transferring duties, respectively, from the Department of Commerce to the Department of Consumer and Industry Services; then to the Department of Community Health); Health Care Ass'n Workers Compensation Fund v. Director of the Bureau of Worker's Compensation, 265 Mich.App. 236, 250, 694 N.W.2d 761 (2005) (citation omitted) (recognizing the authority of the Governor to reorganize and transfer executive power "`"within, among or across"' executive departments"). It is plainly an "entity acting under a grant of authority from" the state of Michigan "that is authorized by law to oversee the health care system," and is therefore a "health oversight agency" under HIPAA regulations. 45 CFR 164.501. Under MCL 333.16235(1), petitioner sought the instant subpoena on behalf of the MDCH. Petitioner requested the patient health information at issue incident to an insurance fraud investigation conducted by the MDCH. This information pertained to the MDCH's "oversight activities authorized by law," particularly a disciplinary investigation concerning respondent's provision of dental care, so respondent, as a health care provider, 42 USC 1320d(3),² was authorized to release information under HIPAA regulations, 45 CFR 164.512(d)(1). See 65 Fed Reg 82462, 82529 (noting that "for the purposes of . . . [45 CFR 164.512(d)], we intend for investigations . . . to mean investigations of health care fraud").

Respondent argues that § 512(d) merely authorizes the disclosure of the information at issue, but does not require it. It is true that § 512(d) itself does not require disclosure of this information, but as we will explain, that is ultimately immaterial. "[I]t is well-settled that an agency's interpretation of its own regulation is `of controlling weight unless it is plainly erroneous or inconsistent with the regulation.'" Secretary of Labor, Mine Safety & Health Admin. v. Western Fuels-Utah, Inc., 283 U.S. App DC 334, 337, 900 F.2d 318 (1990), quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945); see also Auer v. Robbins, 519 U.S. 452, 461; 117 S.Ct. 905, 137 L.Ed.2d 79 (1997).³

Respondent reasons that "the fact that . . . [he] was asked to respond to a subpoena must shift the analysis to 45 CFR 164.512(e) . . . which governs disclosures for judicial and administrative proceedings via court order or subpoena." In fact, respondent's claim is belied by the plain language of § 512(e), which states that "[t]he provisions of this paragraph do not supersede other provisions of this section that otherwise permit or restrict uses or disclosures of protected health information." 45 CFR 164.512(e)(2). Under this language, where one provision for disclosure of PHI is sufficient to allow the disclosure, it is unnecessary to invoke § 512(e). In this context, because the MDCH is a "health oversight agency," and the requested information pertained to the MDCH's "oversight activities authorized by law," respondent, as a health care provider, 42 USC 1320d(3), was authorized to release information under 45 CFR 164.512(d)(1). It was unnecessary for petitioner to seek the information under § 512(e). See 65 Fed Reg 82462, 82529-82530.

2. Dentist-Patient Privilege

We also reject respondent's argument that Michigan's dentist-patient privilege statute precludes disclosure of the subpoenaed information.

The MDCH is authorized to "investigate activities related to the practice of a health profession by a licensee," MCL 333.16221, and to "conduct an investigation necessary to administer and enforce" Article 15, Occupations, of the Public Health Code, MCL 333.16101 et seq., MCL 333.16233. Incident to this authority, MCL 333.16235(1) expressly authorizes the Attorney General to pursue investigative subpoenas on behalf of the MDCH, and to compel disclosure of patient records.

Part 166 of Article 15 of the Public Health Code, MCL 333.16601 et seq., provides for the licensing and regulation of dentistry. Incident to this regulation, MCL 333.16648(1) provides as follows:

Information relative to the care and treatment of a dental patient acquired as a result of providing professional dental services is confidential and privileged. Except as otherwise permitted or required under the health insurance portability and accountability act of 1996, Public Law 104-191, and regulations promulgated under that act, 45 CFR parts 160 and 164, . . . a dentist or a person employed by the dentist shall not disclose or be required to disclose that information.

Respondent argues that this provision expressly excepts dentist-patient records from the Attorney General's subpoena power under MCL 333.16235(1) because it directs that dentists "shall not disclose or be required to disclose" that information. This argument is refuted by the clear language of this section....