A recent District Court order confirms that the practice of “on-demand” subpoenas utilized by the Department of Regulatory Agencies (DORA) to require immediate production of records is unlawful. As a result, DORA is doing away with the on-demand subpoena. We have informally confirmed that all future DORA subpoenas for production of documents will have a 14-day return date.
The on-demand subpoena has long troubled health care providers subject to DORA oversight. On-demand subpoenas requested production of documents immediately while a DORA representative waited, sometimes in the provider’s waiting room. In finding this practice unlawful, the District Court considered an on-demand subpoena issued by the Colorado Dental Board. The Court held that there is no authority for the on-demand subpoena in the Dental Practice Act. The Court further held that subpoena power is limited to investigations that are lawfully authorized, and for documents sufficiently specific to obtain adequate, not excessive, discovery relevant to an investigative inquiry. Though the District Court case focused on the Dental Board, its holding has a far broader reach. Because no practice act contains language allowing an on-demand subpoena, and because subpoena power is always limited to investigations that are lawfully authorized, the District Court order effectively applies to all DORA on-demand subpoenas.
DORA’s policy change to eliminate the the on-demand subpoena and provide a 14-day response time is a new one. We will continue to evaluate whether the policy is effectively and uniformly implemented, and also continue to monitor whether the scope of DORA’s subpoenas are appropriately defined. If you have any questions regarding the legality of a subpoena you have received from a licensing agency, or any questions regarding the scope of any DORA investigation, please contact one of our experienced healthcare law attorneys at 303-433-8010.