Washington Department of Health investigative reach

Clients often express concerns about what the Department of Health [“DOH”] can obtain in its investigations of them as licensed health professionals, particularly when it involves their own health care information, even if it may be withheld from a third party in responding to a request for public records later on.

There are two routes the Department has utilized in obtaining its professional’s medical records.

A health provider “shall” disclose most all health care information about a patient, not just of the licensed professional (it could be the licensee’s patient(s)), without the patient’s authorization if it is disclosed to DOH to investigate unprofessional conduct or an ability to practice with reasonable skill and safety.  This is specific to disciplinary investigations and the professional may not even learn of the disclosure of their health information unless and until they obtain the DOH investigative file.

Also, the health provider “may not” disclose health care information sought by discovery requests or compulsory process until the “attorney” seeking the information jumps through some hoops to put both the provider and patient on notice with an opportunity to seek a protective order, etc.  This seems applicable in the context of an adjudicative hearing or a civil action, not necessarily specific to disciplinary investigations. 

Nevertheless, DOH has used both regulations to obtain the personal patient records of its licensed health professionals in disciplinary investigations, and HIPAA permits disclosure to state licensing bodies.  When the latter process is used, there is at least an opportunity to consider objecting, depending on the facts, before the information is released, such as state constitutional issues. 

Chapter RCW 42.56

WAC 246-11-130

RCW 70.02.050(2)(a)

RCW 70.02.060

45 CFR 164.512(d)

Wa. Const. art. I, § 7