Section 193.6.2. Investigatory subpoena procedures.

       6.2(1) The board’s executive officer or designee may, upon the written request of a board investigator or on the officer’s own initiative, subpoena books, papers, records, and other real evidence which the officer determines are necessary for the board to decide whether to institute a contested case proceeding. In the case of a subpoena for mental health records, each of the following conditions shall be satisfied prior to the issuance of the subpoena:

        a.           The nature of the complaint reasonably justifies the issuance of a subpoena;

        b.           Adequate safeguards have been established to prevent unauthorized disclosure;

        c.           An express statutory mandate, articulated public policy, or other recognizable public interest favors access; and

        d.           The patient was notified and an attempt was made to secure an authorization from the patient for release of the records at issue.

       6.2(2) A written request for a subpoena or the executive officer’s written memorandum in support of the issuance of a subpoena shall contain the following:

        a.           The name and address of the person to whom the subpoena will be directed;

        b.           A specific description of the books, papers, records or other real evidence requested;

        c.           An explanation of the reasons that the documents sought to be subpoenaed are necessary for the board to determine whether it should institute a contested case proceeding; and

        d.           In the case of a subpoena request for mental health records, confirmation that the conditions described in subrule 6.2(1) have been satisfied.

       6.2(3) Each subpoena shall contain the following:

        a.           The name and address of the person to whom the subpoena is directed;

        b.           A description of the books, papers, records or other real evidence requested;

        c.           The date, time and location for production, or inspection and copying;

        d.           The time within which a motion to quash or modify the subpoena must be filed;

        e.           The signature, address and telephone number of the executive officer or designee;

        f.            The date of issuance;

        g.           A return of service.

       6.2(4) Any person who is aggrieved or adversely affected by compliance with the subpoena who desires to challenge the subpoena must, within 14 days after service of the subpoena, or before the time specified for compliance if such time is less than 14 days, file with the board a motion to quash or modify the subpoena. The motion shall describe the legal reasons why the subpoena should be quashed or modified, and may be accompanied by legal briefs or factual affidavits.

       6.2(5) Upon receipt of a timely motion to quash or modify a subpoena, the board may issue a decision or may request an administrative law judge to issue a decision. The administrative law judge or the board may quash or modify the subpoena, deny the motion, or issue an appropriate protective order. Prior to ruling on the motion, the board or administrative law judge may schedule oral argument or hearing by telephone or in person.

       6.2(6) A person aggrieved by a ruling of an administrative law judge who desires to challenge the ruling must appeal the ruling to the board in accordance with the procedure applicable to intra-agency appeals of proposed decisions set forth in rules 193—7.31(17A) and 7.32(17A), provided that all of the time frames are reduced by one-half.

       6.2(7) If the person contesting the subpoena is not the person under investigation, the board’s decision is final for purposes of judicial review. If the person contesting the subpoena is the person under investigation, the board’s decision is not final for purposes of judicial review until either (1) the person is notified that the investigation has been concluded with no formal action, or (2) there is a final decision in the contested case.