Kansas Court Of Appeals Agrees State Board Of Healing Arts Has Broad Subpoena Power

A 2016 decision issued by the Kansas appeals court discussed the broad authority possessed by the State Board of Healing Arts (“the Board”) to issue subpoenas during investigations. The case discusses important issues relating to the relevance of certain information as well as the Board’s ability to issue subpoenas for that information.  Since a subpoena is a court order, compliance must be made. However, a party upon whom a subpoena has served can move a court to quash the subpoena. Kansas professional licensing attorney Danielle Sanger represents professionals facing disciplinary action. Attorney Sanger vigorously represents her clients to protect their livelihood.

The Board’s authority to issue subpoenas is conferred by statute. Kansas Statute 65-2839a(a) and (b) delineate the extent of the Boards’ authority. The statute gives the Board wide-ranging to review documents, copy documents, compel witnesses to testify, and compel witnesses to produce documents and other physical evidence.  The statute limits the nature of the documents to those related to medical competence, unprofessional conduct, and the physical or mental health of the licensee to safely practice medicine. The licensee subject to the subpoena may file a petition with the Board to revoke the subpoena within five days of receiving the subpoena.  The statute requires that the Board revoke any subpoena that does not relate to any grounds for disciplinary action, is not relevant to the investigation, or fails to describe particularly the items requested.

Courts defer to administrative actions and the agency’s authority to issue subpoenas. Enforcement of subpoenas, under Kansas law, is left to the issuing agency.  Notwithstanding, Kansas courts have jurisdiction to hear motions to quash subpoenas.  Kansas courts take a “relaxed” view toward administrative subpoenas.  A Kansas court will uphold the subpoena unless the subpoena has no relevance to the investigation or is unlawful for some reason. State agencies do not enjoy limitless subpoena power. Accordingly, courts will validate subpoenas if the request is made under the lawful agency action, the demand is not indefinite, and the request is “reasonably relevant to the purpose of the inquiry.” The reviewing court has the authority to quash, modify, or place limitations upon an administrative subpoena.  Licensees must be aware that in 2015 the law changed. A district court may hear a petition to quash a subpoena only after the party exhausts its “administrative remedies.”

Understanding the extent of the Board’s authority is vital to knowing its limitations on issuing subpoenas.  The Kansas Supreme Court stated that the purpose of the Board is to protect the public from harm perpetrated by unqualified, unprofessional, and improper practices. The state has an enormous interest in protecting its people from harm. The Board promotes competent health care practices by ensuring each practicing the healing arts is properly licensed.  The state legislature charged the Board with issuing licenses to competent individuals and revoking licensed of the unqualified. The Board’s authority to license practitioners accompanies the power to investigate complaints. Part of that investigatory power is the power to issue administrative subpoenas.

The issue Board’s authority was an issue in a recent Appeals Court decision. In that case, the Board served a subpoena upon a chiropractor and his employer. A dissatisfied former patient sued the chiropractor in small claims court for negligence. The court entered judgment for the chiropractor. Once judgment entered, the Board received notice of the lawsuit and began an investigation. The Board issued subpoenas for the patient’s records. The chiropractor’s employer filed a petition to quash the subpoena. The employer argued that the chiropractor successfully defended the lawsuit filed by the former patient. Therefore, the chiropractor committed no wrongdoing. The District Court and the Appeals Court disagreed. The Appeals Court held that the subpoena issued by the Board was relevant to investigate the chiropractor for incompetence.

Attorney Sanger Can Help If You Were Served With A Subpoena

Kansas Professional Licensing Attorney Danielle Sanger will fight to protect your practice from intrusion by an administrative agency. Attorney Sanger vigorously defends her clients against allegations of professional misconduct. Call Attorney Sanger today at 785-979-4353 to schedule an appointment and discuss how Attorney Sanger will fight for you.

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