The first contact that a California licensee may receive from a licensing board investigator is either a letter asking the licensee to sign a waiver form for the release of records, or receipt of a copy of an investigative subpoena to a third party seeking certain personal records. The request for a release or waiver usually comes at the beginning of an investigation, and may be accompanied by a rather innocuous letter or a friendly telephone call or visit. (Please note that this article is discussing requests for a licensee’s own records held by third parties such as a doctor or employer. Records of patients or clients are a different issue altogether, and their release may be mandated by law upon threat of discipline.)
Our standard advice to clients is to never sign an authorization or consent to release your personal employment, medical or other records. There are several reasons for this advice. First, and foremost, your privacy is at stake. These records are highly personal and sensitive. They may contain information about how much money you have made, your performance at work, illnesses you have suffered, or complaints of harassment you have made. Second, although you may feel that your personal records do not in any way negatively reflect upon you, you might be surprised. A licensing board may be looking for any evidence of drug or alcohol abuse, impairment, poor judgment, practice errors, mental health issues, or competency issues. The scope of the inquiry is very broad. Third, your licensing agency does not work for you, but for the public to protect them from any danger you may represent. Therefore, simply put, your licensing agency is looking for guilt, not innocence, not to clear up an issue, but to build a case for discipline.
There can be, however, occasionally a scenario where it is beneficial to sign an authorization to release your own records. For example, if you already know the complete contents of the records sought, and they will help to tell "your side of the story" without any detriment to you, you may want to encourage or even facilitate the records release.
Investigative subpoenas are another matter. If an investigator cannot get records by securing a signed release or simply by asking, then the licensing agency can issue a subpoena for the records. The standard proper response is to retain an experienced licensing attorney to file objections, which must be done very quickly. The objections are served on the agency and the custodian of the records sought. Most employers, medical providers or others will respect the objections and not turn over the records. It is then up to the agency to go to court to seek a court order to enforce the subpoena. Usually before the agency goes to court, they will contact the attorney for the licensee to try to negotiate release of the records. Through negotiation, the scope of the records release can be limited to exclude sensitive information that is irrelevant to the investigation.
Agencies under the California Department of Consumer Affairs (DCA), including the Medical Board of California, Dental Board of California, the Bureau of Real Estate and the Board of Registered Nursing have their own investigators. Smaller boards often use investigators from the Division of Investigation of the Department of Consumer Affairs to conduct their investigations. The Board of Registered Nursing uses both DCA investigators and its own investigative staff. In an investigation, an investigator may be paired with an attorney in what is referred to as a vertical assignment or vertical prosecution. An investigator may also work closely with a Board expert.
Responding to licensing agency requests for records and investigative subpoenas can be very tricky. It is best to let a licensing lawyer deal with the complicated strategic and legal questions involved.