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Lame Duck Bush Gag Rule Prevents State Licensing Staff from Producing Documents or Testifying in Nursing Home Cases

By Peter Lomhoff, Esq.


On their way out the door the Bush Administration adopted a new rule, 45 CFR section 2.2, which designates the employees of state health departments, such as the California Department of Public Health, that do inspections on behalf of the federal government, as federal employees. The purpose and effect of the rule is that federal employees are not subject to state court subpoenas, so we can no longer subpoena a CDPH employee to testify without permission from the federal government. This rule covers the records of such state agencies as well.

The California Department of Public Health adopted a policy to implement the new federal rule on February 9, 2009. The new state policy is to refuse subpoenas for its employees, or records made by its employees, when the employees are doing federal activities or combined state and federal activities. That means CDPH will not honor a subpoena for records of a combined state and federal complaint investigation of a nursing home, or an annual licensing survey of a nursing home. If you serve a subpoena for such an employee or for such records, the new CDPH policy requires the local Licensing and Certification office to send you a letter advising you to write to the San Francisco Regional Office of Centers for Medicare & Medicaid Services to ask for voluntary testimony or records production.

If the employee conducts only a state survey or complaint investigation under state law, then the new exemption from testifying or producing documents will not apply.

How do we practice nursing home litigation if the nursing home investigators are not available except by permission of the federal government? The same way we try a car crash case without the police officer who took all the witnesses’ statements, and without the police report. We must be much more aggressive in obtaining CDPH records through discovery from defendants since the records are no longer available in admissible form from CDPH. We can file a collateral action against the federal agency or an action under the Federal Administrative Procedure Act. See U.S.C. 701–706; The Rutter Group, Civil Procedure Before Trial, section 8:56.3. Another possibility is to file our cases in federal court whenever possible, based on diversity jurisdiction or violation of federal law, but that seems like a long way around just to get a federal subpoena.

It does appear that CDPH public records are still public records, so those are still available to look at, but even public records may not be admissible in court if CDPH records custodians cannot be compelled to testify to authenticate them.

You can read more about the new federal rule at: www.bloomberg.com/apps/news?pid=newsarchive&sid=aGc2PNd3vVLs.

You can view the Countdown with Keith Olbermann Nursing–Home–Gate segment at: www.msnbc.msn.com/id/3036677/#29397210.

You can download copies of the new CDPH policy and matching form letters here.

The Nursing Home Litigation Group of the American Association of Justice is working hard to get the federal rule overturned. It’s a work in progress. Meanwhile, we need to share our experience with this new California policy. What is everyone’s experience, and what do you know?

(Peter Lomhoff is an attorney in private practice in Oakland, CA)

Page Last Modified: April 9, 2009