
    In the Matter of Henry Camperlengo, Appellant, v Barbara Blum, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued April 2, 1982;
    decided June 10, 1982
    
      POINTS OF COUNSEL
    
      Dennis B. Schlenker for appellant.
    I. The information sought by subpoena duces tecum is protected by statutory privilege as provided for in CPLR 4504. (Edington v Mutual Life Ins. Co. of N. Y., 67 NY 185; Westover v Aetna Life Ins. Co., 99 NY 56; Matter of Coddington, 307 NY 181; Anker v Brodnitz, 98 Misc 2d 148; Matter of City Council of City of N. Y. v Goldwater, 284 NY 296; Matter of Investigation of Criminal Abortions in County of Kings [Magelaner], 286 App Div 270, 309 NY 1031; Craig v Boren, 429 US 190; Eisenstadt v Baird, 405 US 438; Sullivan v Little Hunting Park, 396 US 229; Griswold v Connecticut, 381 US 479.) II. Information obtained from the psychotherapist-patient relationship is constitutionally within the right to privacy. (Carey v Population Servs. Int., 431 US 678; Roe v Wade, 410 US 113; Whalen v Roe, 429 US 589; Griswold v Connecticut, 381 US 479; Loving v Virginia, 388 US 1; Skinner v Oklahoma, 316 US 535; Eisenstadt v Baird, 405 US 438; Prince v Massachusetts, 321 US 158; Pierce v Society of Sisters, 268 US 510; Taylor v United States, 222 F2d 398.) III. Disclosure of those requested records in adherence to the subpoena duces tecum is not validated by a compelling State interest. (San Antonio School Dist. v Rodriguez, 411 US 1; Fuentes v Shevin, 407 US 67; Bransburg v Hayes, 408 US 665; Prink v Rockefeller Center, 48 NY2d 309; Roe v Wade, 410 US 113; Doe v Bolton, 410 US 179; Caesar v Mountanos, 542 F2d 1064.) IV. The physician-patient privilege was not waived by petitioner’s patients; public policy neither mandates nor requires waiver of the privilege as condition of participation in the Medicaid program. (Yaron v Yaron, 83 Misc 2d 276; Matter of Sigety v Hynes, 38 NY2d 260; Matter of City Council of City of N. Y. v Goldwater, 284 NY 296.)
    
      Robert Abrams, Attorney-General (Alan W. Rubenstein and Shirley Adelson Siegel of counsel), for respondents.
    I. The Medicaid monitoring procedures here involved are authorized and required by Federal and State law in furtherance of important public policy, i.e., the prevention of Medicaid fraud and abuse; the CPLR 4504 privilege does not arise. (Lumpkin v Department of Social Servs. of N. Y., 45 NY2d 351, 439 US 1040; Matter of Dunbar v Toia, 45 NY2d 764; Matter of Sigety v Hynes, 38 NY2d 260, 425 US 974; Schaubman v Blum, 49 NY2d 375; Matter of People v Doe, 107 Misc 2d 605; Matter of Schulman v New York City Health & Hosps. Corp., 38 NY2d 234; Matter of Hyman v Jewish Chronic Disease Hosp., 15 NY2d 317.) II. Appellant lacks standing to assert the constitutional rights of others. (Singleton v Wulff, 428 US 106; Matter of Dairylea Coop. v Walkley, 38 NY2d 6; Pharmaceutical Mfrs. Assn. v Whalen, 54 NY2d 486.) III. The right to maintain secrecy with respect to one’s affairs does not extend to Medicaid patient records where, as here, appellant’s patients are protected by the confidentiality constraints to which respondents are subject; this is especially so because there is no support in the record for an assumption that confidentiality provisions will be administered improperly and because the State’s interest in obtaining the information is legitimate. (Whalen v Roe, 429 US 589; People v Onofre, 51 NY2d 476; Plante v Gonzalez, 575 F2d 1119;, 439 US 1129; Nixon v Administrator of Gen. Servs., 433 US 425; Volkman v Miller, 41 NY2d 946; Fadjo v Coon, 633 F2d 1172; Hawaii Psychiatric Soc., Dist. Branch of Amer. Psychiatric Assn. v Ariyoshi, 481 F Supp 1028; Schachter v Whalen, 581 F2d 35; General Motors Corp. v Director of Nat. Inst, for Occupational Safety & Health, Dept. of Health, Educ. & Welfare, 636 F2d 163; du Pont de Nemours & Co. v Finklea, 442 F Supp 821.)
   OPINION OF THE COURT

Chief Judge Cooke.

The physician-patient privilege does not absolutely protect a doctor’s records of treatment of Medicaid patients from a subpoena of the State Department of Social Services issued in an investigation of billing practices. The order of the Appellate Division, therefore, should be affirmed.

Petitioner is a psychiatrist whose patients include a number of Medicaid recipients. The State Department of Social Services discovered that petitioner had submitted consecutive billing dates for certain Medicaid patients. Considering such billing unusual, the department sought access to petitioner’s records to determine if there had been unnecessary treatment or fraud in billing procedures. Petitioner’s co-operation was inadequate and the department eventually issued a subpoena duces tecum requiring petitioner to produce his records concerning 35 Medicaid patients. The subpoena sought: “1) all patient records including, but not limited to treatment plans, periodic evaluations and any other treatment or diagnostic or prognostic records. 2) Any other miscellaneous medical data relating to the patient’s physical or mental condition. 3) Records of any payments by third parties for medical services rendered to the patients.” Petitioner moved pursuant to CPLR 2304 to quash the subpoena. Supreme Court denied the motion and the Appellate Division affirmed (83 AD2d 661).

On this appeal, petitioner asserts that the material sought by the subpoena is protected by the physician-patient privilege set forth in CPLR 4504 (subd [a]). That statute provides that, unless the patient waives the privilege, a physician “shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.”

The physician-patient privilege is a purely statutory creation, in derogation of the common-law rule that a physician could be compelled to disclose information acquired in the treatment of a patient (see People v AlKanani, 33 NY2d 260, 264, cert den 417 US 916; Steinberg v New York Life Ins. Co., 263 NY 45, 48; see, generally, Richardson, Evidence [10th ed — Prince], §§ 426-444). First enacted in New York in 1828, the privilege is designed “to protect those who are required to consult physicians from the disclosure of secrets imparted to them; to protect the relationship of patient and physician and to prevent physicians from disclosing information which might result in humiliation, embarrassment, or disgrace to patients” (Steinberg v New York Life Ins. Co., supra, pp 48-49; see, also, Pierson v People, 79 NY 424, 433). This provision of confidentiality encourages the patient to seek medical treatment and to be frank in describing his or her symptoms to the physician so that the most effective treatment can be obtained.

Although the privilege serves an important social function, in certain instances the Legislature has abrogated this privilege to effectuate some other public policy, such as the detection and prevention of child abuse (Family Ct Act, § 1046, subd a, par [vii]) or the treatment of narcotic addiction (Public Health Law, § 3373). The question here is whether and to what extent the State and Federal regulatory provisions of the Medicaid program have also created an exception to the privilege.

The Medicaid program uses public funds to help provide medical services to needy persons. For this program to be carried out effectively, “the public must be assured that the funds which have been set aside for this worthy purpose will not be fraudulently diverted into the hands of an untrustworthy provider of services” (Schaubman v Blum, 49 NY2d 375, 379). To this end, the Medicaid program requires that certain information be made available to those charged with administering the program.

The Federal Government requires that States participating in Medicaid “provide for agreements with every person or institution providing services under the State plan under which such person or institution agrees (A) to keep such records as are necessary fully to disclose the extent of the services provided to individuals receiving assistance under the State plan, and (B) to furnish the State agency or the Secretary with such information, regarding any payments claimed by such person or institution for providing services under the State plan, as the State agency or the Secretary may from time to time request” (US Code, tit 42, § 1396a, subd [a], par [27]). New York State regulations require that such information be kept by Medicaid providers for a minimum of six years after payment and made available to the appropriate agencies (18 NYCRR 540.7 [a] [8]).

Although there is no express statutory exception to the privilege for Medicaid-related records, the Federal and State record-keeping and reporting requirements evidence a clear intention to abrogate the physician-patient privilege to the extent necessary to satisfy the important public interest in seeing that Medicaid funds are properly applied. Of course, this exception to the privilege is intended to be no broader than necessary for effective oversight of the Medicaid program. Thus, the use of information obtained pursuant to the record-keeping requirements is restricted to purposes directly connected with administering the Medicaid program, and disclosure is otherwise prohibited (US Code, tit 42, § 1396a, subd [a], par [7]; Social Services Law, §§ 136, 367-b, subd 4; § 369, subd 3). Continued confidentiality is assured and any adverse impact on the policy underlying the privilege is kept to a minimum.

Petitioner therefore cannot avail himself of the physician-patient privilege with respect to the department’s subpoena of the treatment records of Medicaid patients. Although the exception to the privilege is limited in scope, it is broad enough to permit the department to ascertain whether Medicaid funds are properly applied.

Petitioner also argues that the information sought by the department is protected by the right to privacy embodied in the United States Constitution. This claim was not raised below, however, and therefore should not now be considered by this court (see Tumolillo v Tumolillo, 51 NY2d 790; Di Bella v Di Bella, 47 NY2d 828).

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed. 
      
       Inasmuch as petitioner abandons on this appeal any claim that the department’s subpoena was overly broad, this court has no occasion to delineate the precise boundaries of the exception.
     