The question in this case is whether an administrative subpoena issued by the Comptroller during an audit must comply with general rule under CPLR 3122(a)(2), which requires a subpoena seeking access to medical records to include a patient authorization for the records.
The State provides health insurance to state and certain local government employees through the Empire Plan, and makes payments to medical providers who provide services to Empire Plan members. In Matter of Handler, M.D., P.C. v. DiNapoli, 23 N.Y.3d 239 (2014), the Court of Appeals held that the Comptroller is authorized to review the records of medical providers that provide health care services to Empire Plan members in auditing expenditures under the program.
Pursuant to that authority, the Comptroller issued an administrative subpoena to petitioner in this case, a health care provider that provides medical services to Empire Plan members. Petitioner sought to quash the subpoena for failure to comply with CPLR 3122(a)(2), which provides that a medical provider “served with a subpoena duces tecum, other than a trial subpoena issued by a court, requesting the production of a patient’s medical records pursuant to this rule need not respond or object to the subpoena if the subpoena is not accompanied by a written authorization by the patient.”
Supreme Court quashed the subpoena because it was not accompanied by the authorizations required by CPLR 3122(a)(2), but the Third Department reversed. The Appellate Division held that CPLR 3122(a)(2) applies only to subpoenas issued by a party to litigation seeking discovery under CPLR 3120 or 3121 after an action or proceeding is commenced; in the Appellate Division’s view, the provision does not apply to the Comptroller’s presuit administrative subpoena issued in this case.
The Court of Appeals granted leave to appeal.
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