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State v. Liu

Superior Court of Delaware, Kent

January 2, 2018

State
v.
Grace Liu (aka Grace Yu aka I-Yin Liu)

          Submitted: December 22, 2017

          Jeffrey J. Clark Judge.

         Counsel:

         The State charged Defendant Grace Liu (hereinafter "Dr. Liu") with one count of health care fraud for alleged fraudulent Medicaid billing, one count of non-compliance with bond conditions, and fourteen separate counts of endangering the welfare of children. The endangering the welfare charges allege that Dr. Liu, through her dental practice, dangerously permitted non-certified dental assistants to administer nitrous oxide to children under her care.

         The State issued an Attorney General's subpoena to Dr. Liu and her dental practice, The Smile Place, seeking copies of "any and all medical records, whether in electronic or paper form" involving the fourteen alleged child victims. Dr. Liu challenges the appropriateness of the subpoena arguing that it unreasonably violates her rights against unreasonable searches and seizures. Accordingly, she filed the instant motion to quash the subpoena.

         After evaluating the scope of the subpoena, the Court finds it reasonable. On balance, it specifies the matters sought with reasonable particularity, and it requires production of only dental records relating to the fourteen minor patients who were allegedly administered nitrous oxide by unqualified personnel. Finally, under the circumstances of this case, the documents sought do not cover an unreasonable amount of time. Moreover, the Court also finds that the reasonableness of the subpoena is significantly bolstered by Dr. Liu's agreement pursuant to the Delaware Medical Assistance Program to produce upon request all medical records involving Medicaid billed patients. For these reasons and those that follow, Dr. Liu's motion to quash the Attorney General's subpoena is DENIED. Dr. Liu and her dental practice shall produce the requested records within a reasonable time.

         Standard for Reviewing the Enforceability of an Attorney General's Subpoena

         The Attorney General has statutory authority to seize evidence pursuant to an Attorney General's subpoena.[1] The Delaware Supreme Court has held that the Attorney General has no independent authority to enforce its subpoenas after issuance.[2]If one served with a subpoena does not voluntarily comply, the matter must be resolved either through a motion to enforce the subpoena or a motion to quash the subpoena.[3]Either will trigger court review.[4]

         Because Attorney General subpoenas often implicate privacy interests, the Fourth Amendment of the United States Constitution requires that the subpoena be "reasonable.[5] Delaware Courts have settled on a three part test to determine if such a subpoena is reasonable. Namely,

[i]n order to meet the test of reasonableness, (1) the subpoena must specify the materials to be produced with reasonable particularity, (2) the subpoena must require the production only of materials relevant to the investigation, and (3) the materials must not cover an unreasonable amount of time.[6]

         Discussion

         The subpoena at issue seeks "[a] complete copy of any and all medical records, whether in electronic or paper form for the following patients:"[7] It then lists fourteen minors by name, date of birth, and Medicaid identification number.[8] The State proffers that the fourteen listed minors are the same minors referenced by initials in the indictment. Because the subpoena does not limit the time frame of records it seeks, the request is sufficiently broad to include all records in Dr. Liu's and her practice's possession relating to the fourteen patients at issue. As a threshold matter, although the reasonableness of its scope remains in dispute, there is no ambiguity regarding what records it seeks.

         Dr. Liu moves to quash the subpoena arguing that it does not meet the reasonableness requirement. She argues that it is overbroad, and seeks material outside what would be a reasonable length of time. The State argues to the contrary. The State also relies heavily on the Medicaid provider agreement, signed by Dr. Liu. In that agreement, in exchange for her and her practice's acceptance of Medicaid payments, she as the provider

agrees to maintain or to make available . . . such records as are necessary or deemed necessary by the [Delaware Medicaid Assistance Program] . . .. All records shall be made available at once and without notice to authorized . . . State representatives, including but not limited to Delaware's Medical Fraud Control Unit . . .. The Provider shall retain medical, financial and other supporting ...

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