Kirchmeyer v. Lassen County Adult Services CA3 ( 2021 )

Filed 8/25/21 Kirchmeyer v. Lassen County Adult Services CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
KIMBERLY KIRCHMEYER, as Director, etc., C087127
Plaintiff and Respondent, (Super. Ct. No.
34201800229026CUMCGDS)
v.
LASSEN COUNTY ADULT SERVICES et al.,
Defendants and Respondents;
RICHARD KING,
Intervenor and Appellant.
SUMMARY OF THE APPEAL
Intervenor and Appellant Richard King appeals from a judgement compelling
Mountain Valleys Health Centers (Mountain Valleys) and Lassen County Adult Services
(LCAS) to comply with investigative subpoenas for King’s medical and social services
1
records the Board of Registered Nursing (the Board) served on them. The Board issued
the subpoenas in an investigation into alleged unprofessional conduct by Nurse Sharon
Hanson. The alleged misconduct included falsifying records of home health visits with
King and diagnosing King with a mental disorder, which she is not certified to do. King
argues that Welfare and Institutions Code sections 10850 and 14100.2 (unless otherwise
indicated, citations to code sections are to the Welfare and Institutions Code) prohibit
disclosure of his records, that good cause does not exist to compel the disclosure of the
records, and that the subpoenas were unconstitutionally overbroad in violation of his right
to privacy as stated in article I, section 1, of the California Constitution. Due to the
overlapping nature of King’s second and third arguments, we will consider them together,
infra. Though we interpret sections 10850 and 14100.2 somewhat differently than the
trial court, we affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
Duties of The Board of Registered Nursing
This action was brought by the director of the Department of Consumer Affairs
(the Department). Dean Grafilo was the director of the Department at the time the action
was filed and Kimberly Kirchmeyer is his successor.
The director of the Department has the power and authority to investigate and
prosecute actions concerning matters related to the business activities and subjects under
its jurisdiction. (Gov. Code, § 11180.) In connection with an investigation, the director
may, among other things, “[i]ssue subpoenas for . . . the production of papers, books,
accounts, documents, any writing as defined by Section 250 of the Evidence Code,
tangible things, and testimony pertinent or material to any inquiry, investigation, hearing,
proceeding, or action conducted in any part of the state.” (Gov. Code, § 11181, subd.
(e).) The director can delegate investigatory and hearing powers. (Gov. Code, § 11182.)
2
The Board is one of various boards within the Department. (Bus. & Prof. Code,
§§ 100, 101, subd. (m), 2701, subd. (a).) The boards, bureaus, and commissions within
the Department exist to ensure, “that those private businesses and professions deemed to
engage in activities which have potential impact upon the public health, safety, and
welfare are adequately regulated in order to protect the people of California.”
(Bus. & Prof. Code, § 101.6.) To accomplish this purpose, the boards, “establish
minimum qualifications and levels of competency and license persons desiring to engage
in the occupations they regulate . . . . They provide a means for redress of grievances by
investigating allegations of unprofessional conduct, incompetence, fraudulent action, or
unlawful activity brought to their attention by members of the public and institute
disciplinary action against persons licensed or registered under the provisions of [the
Business and Professions C]ode when such action is warranted.” (Ibid.) The Board is
responsible for prosecuting individuals who are guilty of violating the Nursing Practices
Act (Bus. & Prof. Code, § 2700 et seq.). (Bus. & Prof. Code, § 2715, subd. (a).)
Administration of In-Home Supportive Services in Lassen County
The In-Home Supportive Services program (IHSS) provides services to aged,
blind, or disabled persons who would not be able to remain in their own homes without
the services. (§ 12300, subd. (a).) The IHSS is supervised and administered at the state-
wide level by the California Department of Social Services (CDSS). (See § 10600.)
Counties and their welfare departments then monitor and administer services at the
county level. (See § 12300.3, subd. (i) [referencing how counties retain
applicant/recipient records]; 12301.1, sub. (b)(1) [discussing how a county welfare
department is to assess a recipient’s continuing monthly needs].) Some IHSS services are
covered by Medi-Cal, as described in article 4, chapter 7, part 3, division 9 of the Welfare
and Institutions Code. (See § 14132.95, subds. (a) & (f).) IHSS services covered by
3
Medi-Cal remain “rendered, under the administrative direction of the State Department of
Social Services.” (§ 14132.95, subd. (f).)
As alleged in the petition in the trial court, LCAS administers the IHSS program in
Lassen County.
Circumstances Giving Rise to This Action
King receives IHSS services in Lassen County. Nurse Practitioner Sharon Hanson
provided services to King as an employee of Mountain Valleys.
In 2015, 2016, and 2017, Lassen County attempted to discontinue King’s IHSS
services. Each time, King challenged the County’s decision, and the CDSS State
Hearings Division heard his appeal. Each time, the hearing officer determined that the
county needed to continue providing King IHSS services. Each time, in evaluating
King’s need for services, the hearing officer considered an IHSS Program Health Care
Certification form SOC 873 filled out by and/or letters written by Hanson. The CDSS
decisions observed it was Hanson’s opinion King needed IHSS services to safely remain
in his home, and that he is unable to perform domestic and related services. In a note
dated November 7, 2016, Hanson admitted that, on a form SOC 873 she filled out, she
incorrectly indicated she had last seen King on July 18, 2016, when, in fact, she had last
seen King in her clinic on a different date, August 10, 2016.
On October 20, 2016--a little over one month after King challenged the county’s
2016 decision to discontinue his IHSS services, and before the CDSS hearing date to
resolve that challenge--the Board received a complaint from LCAS, claiming that Hanson
had falsified home health visits with King and diagnosed him with a mental disorder
while working for Mountain Valleys. In August 2017, Kristy Whitmire, a special
investigator for the Board, interviewed the program manager for LCAS. The program
manager reported Hanson had sent a letter to Lassen County IHSS claiming her last visit
with King had been on July 18, 2016, but that Mountain Valleys’s records showed
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Hanson’s most recent visit with King had been on June 12, 2014, and Hanson had visited
King twice before, on October 17, 2011, and April 4, 2013.
On October 11, 2017, the Board sent notices to King telling him the Board was
subpoenaing his records from LCAS and Mountain Valleys. Copies of the subpoenas
were attached to the notices. The notices told King to raise any objections to the
subpoenas before October 26, 2017, in order to prevent his records from being released
before he could state objections to the subpoenas. The subpoenas were signed by a Board
employee to whom Grafilo had delegated investigatory authority.
The Board served the subpoenas on LCAS and Mountain Valleys on October 11,
2017.
In general, the subpoena to LCAS sought “[f]acility investigation records, for the
time period of 04/10/2003 through 04/18/17, pertaining to Richard King.” The 2003
beginning date is consistent with a statement in the 2015 CDSS decision that,
“[a]ccording to [King’s] wife, [King] has received IHSS intermittently from the county
since 2003.” The subpoena specified that the records should include, a timeline of
events; LCAS Physician’s Evaluations dated April 21, 2003; letters, notes, form SOC
873s, and records of encounter visits mentioned in the CDSS decisions to reinstate King’s
services in addition to some records of encounter visits from 2017, an “Chandler/LCSA
Letter dated 07/19/16,” and IHSS social worker notes from around the time the County
notified King it planned to discontinue his services in 2016 to shortly after the CDSS
State Hearings Division issued a decision requiring the county to continue those services.
In general, the subpoena to Mountain Valleys sought, “[u]nredacted medical
records, for the time period of 04/10/2003 through 04/18/17, for Richard King.” It
specified that the records produced should include, all physicians orders, all nursing notes
and assessments, all LCAS physician’s evaluations for IHSS, all encounter visits, all
SOC 873 forms, and a list of letters and notes prepared by Hanson that were mentioned in
the CDSS decisions reinstating King’s IHSS services.
5
Whitmire signed declarations in support of the subpoenas, in which she stated the
Board needed the requested documents “to offer as evidence to investigate the allegations
that Sharon Hanson has violated Business and Professions Code section
2761[, subdivision] (a) and/or 2671[, subdivision ](a)(1).”
According to the petition filed in the trial court, Mountain Valleys produced
records to the Board on October 19, 2017, and LCAS produced records on October 23,
2017. In a letter to Whitmire dated October 24, 2017, King’s attorney said King objected
to the production of his records. The petition alleges the Board has retained the records
under seal.
Proceedings in the Trial Court
The director of the Department filed a petition for an order compelling compliance
with the subpoenas on March 14, 2018. The petition named LCAS and Mountain Valleys
as respondents. King successfully sought to intervene in the action. In his opposition to
the petition, King submitted the November 7, 2016, letter from Hanson in which she
indicated she had not visited King on July 18, 2016, but on August 10, 2016, and the
CDSS decisions.
The trial court granted the Department’s petition and ordered Mountain Valleys
and LCAS to comply with the subpoenas. Though the court did agree that section
14100.2 could apply to protect King’s records, the court disagreed with him regarding the
applicability and interpretation of section 10850, subdivision (a), and found section
10850 allowed for the release of the records sought by the Department. The court also
found that the Department showed a compelling interest in disclosure of the records that
outweighed King’s right to privacy in those records.
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DISCUSSION
I
The Records Are Subject to Disclosure By Statute
King argues that the trial court erred in finding (1) that his records were not
protected under section 10850; and (2) that even though the confidentiality provisions of
section 14100.2 would protect his records, the records were still subject to disclosure
because of the confidentiality exceptions contained in section 10850. We agree with the
trial court that the records sought were not protected under section 10850 due to the
exceptions to confidentiality protections contained in the statute, but we disagree with the
trial court’s conclusion that the records were not subject to disclosure under section
14100.2. As such, we see no conflict in allowing for the disclosure of records under
section 10850 and affirm the trial court’s ruling.
A. Standard of Review
“The interpretation of a statute presents a question of law that this court reviews de
novo.” (Smith v. Loanme, Inc. (2021) 11 Cal.5th 183, 190.)
“Deference is given to the factual findings of trial courts because those courts
generally are in a better position to evaluate and weigh the evidence. (People v. Louis
[(1986)] 42 Cal.3d [969,] 986.) The Courts of Appeal, on the other hand, are in a better
position to resolve legal issues, because ‘ “appellate judges are freer to concentrate on
legal questions” ’ and the judgment of three or more judges is brought to bear in every
case. (Ibid., quoting U.S. v. McConney[ (1984)] 728 F.2d [1195], 1201.) Furthermore,
factual determinations generally are of concern only to the litigants, whereas appellate
decisions provide controlling precedent for future cases. ‘ “From the standpoint of sound
judicial administration, therefore, it makes sense to concentrate appellate resources on
ensuring the correctness of determinations of law.” ’ (People v. Louis, at p. 986, quoting
7
U.S. v. McConney, supra, 728 F.2d at p. 1201.)” (Haworth v. Superior Court (2010)
50 Cal.4th 372, 385.)
B. Section 10850 Allows for Disclosure of Non-Medi-Cal Records
Section 10850, subdivision (a), limits the disclosure of social service records
concerning recipients of social services as follows: “[e]xcept as otherwise provided in
this section, all applications and records concerning any individual made or kept by a
public officer or agency in connection with the administration of any provision of this
code relating to any form of public social services for which grants-in-aid are received by
this state from the United States government shall be confidential, and shall not be open
to examination for any purpose not directly connected with the administration of that
program, or any investigation, prosecution, or criminal or civil proceeding conducted in
connection with the administration of that program.” These disclosure limits, exceptions,
and protections do not apply to records kept as part of the provision of Medi-Cal services:
“[p]ublic social services, as defined in Section 10051, includes publicly funded health
care services administered or supervised by the department or the State Department of
Health Care Services, except that, as used in this section, it does not include the Medi-Cal
program. This subdivision does not affect or alter the exclusions contained in
subdivision (i) or the confidentiality provisions contained in Section 14100.2.” (§ 10850,
subd. (j)(1), italics added.) Thus, to the extent the services King received were Medi-Cal
services and, therefore, covered by the confidentiality provisions and exceptions
contained in section 14100.2, section 10850 does not apply to the release or protection of
those records.
To the extent the services provided to King were not provided under the Medi-Cal
umbrella, we agree with the trial court that section 10850 permits their disclosure in this
instance. An investigation into whether a nurse acted unprofessionally in providing
opinions relied upon by CDSS to determine the IHSS eligibility of an IHSS services
8
recipient is directly connected to the administration of the IHSS program. This
investigation arose because LCAS, the administrator of the IHSS program in Lassen
County, became concerned that Hanson was falsifying records of visits and improperly
diagnosed King, and CDSS relied on those records and that diagnosis to justify providing
King IHSS services. As an administrator of IHSS, LCAS has an interest in making sure
its service providers behave honestly and professionally, and in a manner that does not
result in the misallocation of funds, when providing opinions to LCAS and CDSS, the
state-wide administrator for IHSS services. Here, concerns about Hanson’s
unprofessional conduct arose as a result of--i.e., in connection with--the administration of
the IHSS program. LCAS, the local administrator, then contacted the Board, which is
uniquely qualified to both (1) determine whether Hanson’s actions deviated from
professional standards, and, (2) if Hanson is found to have acted unprofessionally, to
impose disciplinary measures that will dissuade her from committing further
unprofessional conduct in providing information used to determine patient eligibility for
IHSS.
Citing section 12305.82, King implies that the Board’s investigation cannot be the
type of proceeding in which his records may be disclosed under section 10850, because
the Board is not pursuing allegations that explicitly state Hanson committed fraud. This
argument is not persuasive.
Section 12305.82, specifically provides a mechanism for the State Department of
Health Care Services and local IHSS administrators to “investigate fraud in the provision
or receipt of in-home supportive services,” and to “work together as appropriate to
coordinate activities to detect and prevent fraud by in-home supportive services providers
and recipients . . . , to take appropriate administrative action relating to suspected fraud in
the provision or receipt of in-home supportive services, and to refer suspected criminal
offenses to appropriate law enforcement agencies for prosecution.” (§ 12305.82, subd.
(a).) The protocols established for these investigations allow, “[t]he State Department of
9
Health Care Services, the department, and the county [to] share data with each other as
necessary to prevent fraud and investigate suspected fraud pursuant to this section,” and
requires that “[t]he information shall only be used for purposes of preventing and
investigating suspected fraud in the In-Home Supportive Services program, and shall
otherwise remain confidential.” (§ 12305.82, subd. (b).)
This statute specifically applies to fraud investigations by IHSS administrators and
the information shared between state and local IHSS administration agencies and the
Department of Health Care Services in those investigations. The statute does not say its
protocols apply to information shared in investigating all matters connected to the
administration of the IHSS program.
Similarly, section 10850, which does govern information-sharing in investigations
related to the administration of non-Medi-Cal IHSS services, neither indicates which state
agencies may or may not be involved in conducting an investigation connected to the
administration of a social service program administration, nor requires the investigation
be specifically aimed at preventing fraud before information can be shared among
entities.
Though it is certainly possible that an investigation into an administrative matter
may involve allegations of fraud, there is nothing in section 10850 to suggest an
investigation into unprofessional conduct tantamount to negligence cannot fall within the
confidentiality exception’s rubric. Indeed, to fully prevent the misuse of public funds and
protect service recipients from the harm of having their needs misidentified, there must
be in place mechanisms that allow for the thorough investigation of negligent
administrative practices, even if those practices do not stem from the fraudulent intent of
the administrators or those who act as their advisors in determining program eligibility.
In making his argument regarding section 12305.82, King suggests we place a
limit on the confidentiality exception in section 10850 that the Legislature did not
10
provide. We decline to do that. (Kaanaana v. Barrett Business Services, Inc. (2021)
11 Cal.5th 158, 171 [“It is not for us to insert a limitation the Legislature excluded”].)
We are also not persuaded by King’s argument we should narrowly read the
confidentiality exception in section 10850, subdivision (a), to exclude investigations by
the Board, because cases that have allowed for the disclosure of confidential records
under section 10850 primarily involve the disclosure of records to employees or agents of
welfare programs. He says the central questions in these cases were not focused on the
identity of the investigating agencies. He relies on the following decisions:
In County of Nevada v. Kinicki (1980) 106 Cal.App.3d 357, 361 (County of
Nevada), a plaintiff seeking to protect his records conceded that the civil proceeding he
was involved in was, “directly connected with the administration of the program,” and
that, “consequently, section 10850 does not prohibit production of the welfare records
requested in defendant's subpoena duces tecum.” Thus, when the confidentiality
exception of section 10850 applies was not at issue at all.
In Haskins v. San Diego County Department of Public Welfare (1980)
100 Cal.App.3d 961, 964 (Haskins), the issue was whether the county public welfare
department had acted negligently, in violation of a duty to keep welfare files confidential
under section 10850, when it allowed an employee who was the ex-wife of a welfare
recipient’s husband to access the recipient’s files, leading to a fraud investigation against
the recipient. The ability of other state agencies to access records under the
confidentiality exception in section 10850 was not at issue.
In Rivera v. Los Angeles Civil Service Commission (1979) 87 Cal.App.3d 1001,
1003-1005 (Rivera), the court considered whether, in an action concerning the
termination of a Los Angeles County Department of Public Social Services (DPSS)
employee based on the allegation that she had accepted overpayments as a recipient of
funds from DPSS, “applications and records concerning [the employee] as a client of
DPSS were confidential and,” therefore under section 10850, “should not be examined in
11
the course of the civil service commission hearing” considering the propriety of her
termination.
In re Jeannie Q. (1973) 32 Cal.App.3d 288, 292, 305, the court considered
whether, in a dependency hearing, testimony by (1) a protective services worker for
Department of Public and Social Services; and (2) a doctor who provided the protective
services worker, in the administration of her job, information about his examination of
children, would be privileged under section 10850. Concluding that, “[t]he physical
welfare of the children is of prime interest to the state and to the DPSS in its
administration of the program,” the court found the information was not protected by
section 10850. (Id. at p. 305.)
In none of these cases was the court asked to determine if information that would
otherwise be protected by section 10850 can be shared, under the exceptions to
confidentiality stated in the section, with an agency that is not a social services agency
administering the program--i.e., CDSS or a local service administrator--operating under a
general statutory mandate that includes investigating matters not directly related to the
administration of social services. “ ‘ “ ‘[I]t is axiomatic that cases are not authority for
propositions not considered.’ ” ’ (McWilliams v. City of Long Beach (2013) 56 Cal.4th
613, 626 [][.)]” (Riverside County Sheriff's Dept. v. Stiglitz (2014) 60 Cal.4th 624, 641.)
Hence, these cases do not provide any authority for King’s position.
We find that the Board’s investigation is directly related to how Hanson performed
her duties in evaluating a patient’s need for IHSS services, an evaluation that played a
pivotal role in CDSS determining continued services must be provided to that patient.
C. Section 14100.2 Allows Disclosure of Medi-Cal Records
As indicated in the beginning of section I., B., ante, to the extent King’s records
are for Medi-Cal services, we find that 10850 does not govern whether the records can be
12
disclosed in this matter. (§ 10850, subd. (j)(1).) Section 14100.2 governs. We hold
section 14100.2, by its plain terms, permits the release of King’s records to the Board.
Section 14100.2, subdivision (a), provides, as relevant here, that “all types of
information, whether written or oral, concerning a person, made or kept by any public
officer or agency in connection with the administration of any provision of this chapter”-
-which is chapter 7, part 3, division 9 of the Welfare and Institutions Code, the same
chapter of the Welfare and Institutions Code that places certain IHSS services under the
Medi-Cal umbrella (see § 14132.95, subds. (a) & (f))--“for which a grant-in-aid is
received by this state from the United States government pursuant to Title XIX of the
Social Security Act shall be confidential, and shall not be open to examination other than
for purposes directly connected with the administration of the Medi-Cal program.”
(Italics added.)
Section 14100.2, subdivision (c), clarifies what it means for something to be
“directly connected with the administration of the Medi-Cal program.” It says the phrase
“encompass[es] those administrative activities and responsibilities in which the
department and its agents are required to engage to insure effective program operations.
These activities include, but are not limited to: establishing eligibility and methods of
reimbursement; determining the amount of medical assistance; providing services for
recipients; conducting or assisting an investigation, prosecution, or civil or criminal
proceeding related to the administration of the Medi-Cal program; and conducting or
assisting a legislative investigation or audit related to the administration of the Medi-Cal
program.” (§ 14100.2, subd. (c).) Thus, cooperating and providing critical records in an
investigation related to a nurse’s activities in “establishing eligibility . . . ; determining
the amount of medical assistance; [and] providing services for recipients,” is “directly
connected with the administration of the Medi-Cal program.”
Here, based on a complaint by the local IHSS administrator, the Board is
investigating actions taken by Hanson when she performed tasks that contributed to
13
CDSS’s determination of King’s need for Medi-Cal-covered IHSS services. Based on
the plain words of the statute, Hanson’s activities, LCAS’s role in ensuring it can rely on
the information it and CDSS obtain in determining an individual’s need for IHSS
services, and the Board’s investigation of the activities stemming from a complaint by
LCAS regarding the reliability of that information are “directly connected with the
administration of the Medi-Cal program.”
II
The Subpoenas Were Not Unconstitutional
The right to privacy set forth in article I, section 1 of the California Constitution
extends to an individual’s medical records. (Grafilo v. Cohanshohet (2019)
32 Cal.App.5th 428, 436.)
King raises two arguments regarding the propriety of the subpoenas in light of this
right. First, King argues that the trial erred when it found that the Board showed good
cause to allow it to subpoena King’s records, thereby invading his privacy rights.
Second, King argues that the scope of the records sought in the subpoenas is overbroad in
light of his privacy interests and the specific nature of Hanson’s alleged misconduct. We
disagree with both arguments.
A. Applicable Law in Evaluating Violation of Privacy Claims
“Article I, section 1 of the California Constitution guarantees certain inalienable
rights. ‘Among these are enjoying and defending life and liberty, acquiring, possessing,
and protecting property, and pursuing and obtaining safety, happiness, and privacy.’
(Cal. Const., art. I, § 1.)” (Lewis v. Superior Court (2017) 3 Cal.5th 561, 569.)
“In Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35 [], the
California Supreme Court established a framework for evaluating potential invasions of
privacy. The party asserting a privacy right must establish a legally protected privacy
interest, an objectively reasonable expectation of privacy in the given circumstances, and
14
a threatened intrusion that is serious. (Id. at pp. 35–37.) The party seeking information
may raise in response whatever legitimate and important countervailing interests
disclosure serves, while the party seeking protection may identify feasible alternatives
that serve the same interests or protective measures that would diminish the loss of
privacy. A court must then balance these competing considerations. (Id. at pp. 37–40.) ¶
Additionally, good cause is required to be shown when the state seeks to invade an
individual’s privacy rights through an administrative subpoena seeking his or her medical
records. ([Board of Medical Quality Assurance v.] Gherardini[(1979)] 93 Cal.App.3d
[669,] 681 [(Gherardini)]; Wood v. Superior Court (1985) 166 Cal.App.3d 1138, 1141–
1143 [] (Wood).) Good cause ‘ “calls for a factual exposition of a reasonable ground for
the sought order.” ’ (Gherardini, supra, at p. 681, quoting Waters v. Superior Court
(1962) 58 Cal.2d 885, 893 [].)” (Grafilo v. Cohanshohet, supra, 32 Cal.App.5th at
pp. 436-437.)
On appeal, “[t]he question of whether a subpoena meets the constitutional
standards for enforcement is a question of law to be reviewed de novo. (Fett v. Medical
Bd. of California (2016) 245 Cal.App.4th 211, 216 [] (Fett); Millan v. Restaurant
Enterprises Group, Inc. (1993) 14 Cal.App.4th 477, 485 [].) The superior court’s factual
findings regarding whether the Board established good cause to intrude on the patients’
privacy rights are reviewed under the substantial evidence standard. (Fett, supra,
245 Cal.App.4th at p. 216.)” (Grafilo v. Cohanshohet, supra, 32 Cal.App.5th at p. 436
[].)
Because our good cause analysis informs our analysis regarding the alleged
overbreadth of the subpoenas, we begin with that.
15
B. Substantial Evidence Supports the Finding that Good Cause Exists to Compel
the Production of King’s Records
When seeking access to private medical records, administrative agencies, “must
demonstrate through competent evidence that the particular records it seeks are relevant
and material to its inquiry sufficient for a trial court to independently make a finding of
good cause to order the materials disclosed.” (Bearman v. Superior Court (2004)
117 Cal.App.4th 463, 469 (Bearman).)
The trial court found that the Board showed a “compelling interest” in the
production of King’s records, observing “it was Hanson[’s] submission of form SOC 873
regarding King’s health status that prompted the complaint and subsequent
investigation.” Additionally, the trial court agreed with the Board’s assessment that
Hanson’s professional duties require accuracy and honesty in reporting medical
information to IHSS program administrators concerning a recipient’s health care status
and needs. We find that substantial evidence supports the trial court’s conclusion.
Here, the county administrator of the IHSS program informed the Board that
Hanson sent a letter to the county IHSS program stating she had visited King on July 18,
2016, when, in fact, Mountain Valleys’s records indicated Hanson had last visited with
King on June 12, 2014. Though King implies in his reply that this error should not be
seen as sufficient evidence of good cause because Hanson later, “corrected” her mistake,
based on this record, it appears that any “correction” was made on November 7, 2016,
after LCAS made its October 20, 2016, complaint to the Board. As such, whether
Hanson would have corrected the record on her own accord remains unknown.
Additionally, in issuing that correction, Hanson stated she actually visited with King on
August 10, 2016, a visitation date also not recorded in Mountain Valleys records referred
to in Whitmire’s good cause declaration. Also, LCAS reported that based on information
available to it, it believed Hanson had diagnosed King with a mental disorder, a diagnosis
16
she lacks the certification to make. (Bus. & Prof. Code, § 2052, subd. (a).) Hanson’s
reporting of King’s condition played a vital role in CDSS’s determination that King
needed IHSS services. Hence, substantial evidence supports the trial court’s
determination that there is a compelling interest that justifies the disclosure of King’s
records in an investigation into Hanson’s conduct. Her alleged unprofessional conduct
impacts the ability of the county and state to effectively administer IHSS services, and
that alleged conduct occurred in her treatment and evaluation of King.
In an effort to convince this court that the trial court’s decision here was not based
on substantial evidence, King relies heavily on Bearman, supra, 117 Cal.App.4th 463 and
Wood, supra, 166 Cal.App.3d 1138 in which appellate courts found there was not good
cause to compel disclosure of records.
These cases are distinguishable. To begin with, in Bearman, supra,
117 Cal.App.4th at pages 467-468, the Medical Board sought a patient’s medical records
in an investigation it initiated after a park ranger alerted the Board that he felt a doctor,
who had provided his patient with a letter certifying the patient’s medical use of
marijuana, had “possibly violat[ed] the law and medical ethics by exceeding his scope of
practice.” Additionally, the court concluded that one of the grounds the Medical Board
provided as “good cause” for compelling the patient’s records was based on a misreading
of the letter the doctor had written for the patient. (Id. at pp. 471-472.)
In this action, the complaint at issue was made by LCAS, which has a particular
interest in ensuring the reliability of records submitted by individuals making
recommendations about the scope of IHSS services to be provided to Lassen County
IHSS beneficiaries. Additionally, there is no dispute that Hanson did, in fact, indicate on
a form that she visited with King on a date she did not actually visit him. LCAS and the
Board are not misreading the form.
Additionally, in Wood and Bearman the administrative agency sought patient
records based on declarations containing allegations that were far less definitive than the
17
declarations here in terms of identifying suspected wrongdoing that gave rise to the
investigations.
In Wood, supra, 166 Cal.App.3d at pages 1141-1142, the Medical Board
submitted one declaration in support of a subpoena indicating it was an investigator’s
“opinion” that a doctor was prescribing drugs in “larger quantities of these drugs and for
longer periods than usual for a general practitioner in the community,” and a second
declaration stating there was a definite “possibility” the doctor was prescribing excessive
quantities of controlled substances. A declaration in support of another subpoena
indicated a doctor, “may” be guilty of repeated acts of excessive prescriptions. (Id. at
p. 1143, italics added.) In Bearman, supra, 117 Cal.App.4th at page 469, a declaration in
support of the subpoena indicated that the physician, “may be violating the law and the
standard of care if he is recommending the medical use of marijuana.” (Italics added.)
Thus, in Bearman and Wood, the administrative agency failed to indicate that even
if the doctors under investigation had certified their patient’s use of medical marijuana or
prescribed a certain level of prescription drugs, that certification and prescription,
respectively, would definitively fall outside the standard of care. Here, it is undisputed
that Hanson submitted a form that indicated she had visited with King on a date she had
not visited with him. Likewise, LCAS has alleged Hanson diagnosed King with a
medical condition, something nurses are not authorized to do. (See Bus. & Prof., § 2052,
subd. (a).)
C. The Subpoenas Are Not Overbroad
“[I]information demanded by an administrative subpoena . . . must be ‘ “relevant
and material” ’ to the investigation being conducted. (Wood, supra, 166 Cal.App.3d at
p. 1149 [‘The board must demonstrate that the particular records it seeks are “relevant
and material to the board’s inquiry” whether the petitioners have improperly prescribed
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Schedule II drugs’]; accord, Bearman[, supra,] 117 Cal.App.4th [at p.] 469 [].)” (Cross
v. Superior Court (2017) 11 Cal.App.5th 305, 329.)
Here, the records sought are relevant and material to the Board’s investigation.
The Board is investigating whether Hanson has engaged in unprofessional conduct. The
Board’s belief that Hanson has engaged in unprofessional conduct is firmly rooted in
information it has obtained regarding her treatment of King: the Board has been told
Hanson has submitted at least one report indicating she met with King, when she, in fact,
had not met with him; and the Board has been advised that Hanson may have diagnosed
King with a mental condition. As discussed above, Hanson’s assessment of King’s needs
has played a key part in his ability to obtain IHSS services, and King’s wife indicated he
has received IHSS services from the county since 2003. The records sought are relevant
and material to ascertaining (a) if Hanson’s reports of treatment and interactions with
King as made to the LCAS and CDSS are supported by records kept by her employer,
Mountain Valleys, and (b) if Hanson’s reports of King’s medical conditions are
consistent with diagnoses made by certified doctors since King first became eligible for
IHSS services, contrary to conclusions reached by certified doctors, based purely on her
own assessments, and/or based on unverified representations made by King.
The subpoenas focused on the timeframe in which King has participated in the
IHSS program, and allegations of suspected unprofessional conduct by Hanson stem from
her treatment and evaluation of King as a participant in that program. The subpoenas
were not overboard.
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DISPOSITION
We affirm the trial court’s ruling. Each side is to bear their own costs on appeal.
(Cal. Rules of Court, rule 8.278.)
HULL, Acting P. J.
We concur:
MURRAY, J.
KRAUSE, J.
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