BEHAR v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION et al

Filing 37

REPORT AND RECOMMENDATIONS re 18 MOTION for Judgment on the Pleadings filed by Allen D. Biehler, Commonwealth of Pennsylvania Department of Transportation Objections to R&R due by 10/25/2010Signed by Magistrate Judge William T. Prince on 10/6/2010. (Attachments: # 1 Notice)(wtplc1, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID BEHAR, M.D.,
Plaintiff
v.
COMMONWEALTH OF
PENNSYLVANIA, DEPT. OF
TRANSPORTATION, ET AL.,
Defendants

:
:
: No. 1:09-CV-2453
:
: (JUDGE CONNER)
: (MAGISTRATE JUDGE PRINCE)
:
:
:
:
:

REPORT and RECOMMENDATION
I. Procedural Background
Pursuant to an Order entered on August 3, 2010 (Doc. 35), the Honorable
Christopher C. Conner referred the pending Motion for Judgment on the Pleadings
to the undersigned for the purpose of preparing a Report and Recommendation.
Plaintiff, David Behar, M.D., commenced this action by filing a complaint
in the United States District Court for the Eastern District of Pennsylvania on June
28, 2009 (Doc. 1)., challenging Commonwealth of Pennsylvania, Department of
Transportation (“PennDOT”) Regulations, 67 Pa. Code § 83, issued under the
Vehicle Code, 75 Pa.C.S.A. §§ 1517, 1518 and 6103, which require health care
professionals to report to the Department of Transportation every patient over

fifteen years of age who is affected by any of a number of listed medical
conditions which could impact their ability to safely operate a motor vehicle. The
complaint asserts violations of the Supremacy Clause in light of the Drug Abuse
Prevention, Treatment and Rehabilitation Act, 42 C.F.R. §§ 2.1, et seq.; due
process violations under the Fifth and Fourteenth Amendments for both vagueness
and interference with the right to practice one’s profession; violations of free
association under the First and Fourteenth Amendments; violations of privacy
rights under the Ninth and Fourteenth Amendments; and violations of both the
Americans with Disabilities Act, 42 U.S.C. § 12132, et seq. and Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794(a) et seq.
Named as Defendants are the Commonwealth of Pennsylvania, Department
of Transportation (“PennDOT”) and Allen Biehler, Secretary of Transportation for
the Commonwealth of Pennsylvania. On December 14, 2009, the action was
transferred to this court inasmuch as the Secretary, as a state official acting in his
state capacity, is considered a resident of the capital, Harrisburg, Pennsylvania,
which is located within the jurisdictional boundaries of the United States District
Court for the Middle District of Pennsylvania. (See Docs. 6-7).
On February 16, 2010, Defendants filed Motion for Judgment on the
Pleadings (Doc. 18), and thereafter filed a supporting brief on February 19, 2010
2

(Doc. 21). Plaintiff filed a Reply and a Brief in Opposition to the Motion on
March 19, 2010 (Docs. 25-26), to which Defendants filed a Reply Brief on April
16, 2010. (Doc. 32). The matter is now ripe for disposition. For the reasons that
follow, it will be recommended that the Motion for Judgment on the Pleadings be
granted in part and denied in part.
II. Factual Background
Plaintiff is a health care provider and psychiatrist licensed to practice
medicine by the Commonwealth of Pennsylvania. PennDOT is the state authority
responsible for assessing an individual’s ability to drive. It has promulgated
regulations which require health care providers such as Plaintiff to notify it of
patients who are affected by certain conditions, as determined by the Medical
Advisory Board, which may impair their ability to safely operate a motor vehicle.
See 75 Pa. C.S.A. §1517, et seq.; 67 Pa. Code §§ 83.5 and 83.6.1 Failure to report
1

The relevant subsection provides:

Disqualification on provider's recommendation. A person who has
any of the following conditions will not be qualified to drive if, in the
opinion of the provider, the condition is likely to impair the ability to
control and safely operate a motor vehicle:
*
*
*
*
*
(7) Use of any drug or substance, including alcohol, known to impair
skill or functions, regardless whether the drug or substance is
medically prescribed.
3

such individuals can result in a summary offense and fine of $25.00.2 Plaintiff
seeks injunctive relief by way of an order prohibiting Defendants from enforcing
the regulations.
III. Standard of Review
Federal Rule of Civil Procedure 12(c) provides:
After the pleadings are closed but within such time as not to delay the
trial, any party may move for judgment on the pleadings. If, on a
motion for judgment on the pleadings, matters outside the pleadings
are presented to and not excluded by the court, the motion shall be

(8) Other conditions which, in the opinion of a provider, is likely to
impair the ability to control and safely operate a motor vehicle.

67 Pa. Code § 83.5(b). Further, the reporting regulation states:
Providers to report unqualified persons.
Physicians and other persons authorized to diagnose and treat
disorders and disabilities defined by the Medical Advisory Board
shall report to the Department, in writing, the full name, date of birth
and address of every person 16 years of age and older diagnosed as
having any specified disorder or disability within 10 days, under 75
Pa.C.S. § 1518 (relating to reports on mental or physical disabilities
or disorders).
67 Pa. Code § 83.6.
2

Although referenced in the briefs as a criminal penalty, the punishment for
failure to report a potentially-impaired individual is a summary offense, which is
contained within the transportation code, not the criminal code, and which carries
a fine of $25.00. 75 Pa. C.S.A. § 6502.
4

treated as one for summary judgment and disposed of as provided in
Rule 56.

Fed. R. Civ. P. 12 (c). The standard of review for a motion for judgment on the
pleadings is plenary. Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289,
290 (3d Cir.1988). Judgment will not be granted unless the movant clearly
establishes there are no material issues of fact, and he is entitled to judgment as a
matter of law. Society Hill Civic Ass'n v. Harris, 632 F.2d 1045, 1054 (3d
Cir.1980). The court must view the facts presented in the pleadings and the
inferences to be drawn therefrom in the light most favorable to the nonmoving
party. Id.
Courts have applied the same standard of review for a motion for judgment
on the pleadings under Rule 12(c) as they do for a motion to dismiss under Rule
12(b).3 The standard of review used for a motion for judgment on the pleadings is
substantively identical to that of a motion to dismiss; the difference between the
two is procedural--a motion for judgment on the pleadings is filed after the
pleadings are closed, and a motion to dismiss is filed in lieu of an answer. See

3

The only notable difference between these two standards is that the court
in a motion for judgment on the pleadings reviews not only the complaint but also
the answer and written instruments attached to the pleadings. 2 Moore's Federal
Practice Civil §12.38 (2004).
5

Woolley v. Commonwealth of Pa., No. 03-1031, 2006 WL 485850, *1 (M.D. Pa.
February 27, 2006); Rose v. Bartle, 871 F.2d 331, 342 (3d Cir. 1989); Regalbuto
v. City of Philadelphia, 937 F.Supp. 374, 376-77 (E.D. Pa. 1995) (stating that
“[c]ourts have applied the same standard of review for a motion for judgment on
the pleadings under Rule 12(c) as they do for a motion to dismiss under Rule
12(b)).
In rendering a decision on a motion to dismiss, a court should not inquire
“whether a plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236
(1974); Nami v. Fauver, 82 F.3d 63, 66 (3d Cir. 1996). First, the court must
accept as true the factual allegations in the complaint and draw all reasonable
inferences from them in the light most favorable to the plaintiff. Innis v. Wilson,
2009 U.S. App. LEXIS 12424, *4-5 (3d Cir. 2009) (citing Phillips v. County of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). However, “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable
to legal conclusions.” Ashcroft v. Iqbal, — U.S. —, 129 S. Ct. 1937, 1949 (2009)
(“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”). The court must then determine whether
the complaint states a plausible claim for relief, which is a “a context-specific task
6

that requires the reviewing court to draw on its judicial experience and common
sense.” Id. at 1950 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557-58
(2007)).
IV. Discussion
Plaintiff challenges the regulations on several grounds. Each will be
addressed in seriatim.4
(A) Standing
Defendants contend first that Plaintiff lacks standing to bring the present
action inasmuch as he has neither been charged nor threatened with a charge for
failing to disclose information sought by the PennDOT regulation. In fact,
PennDOT regulation 67 Pa. Code § 83.6 has never been enforced against health
care providers who fail to disclose the information regarding potentially unsafe
drivers.
The requirements for Article III standing are well established, and require a
plaintiff to prove: (1) injury in fact, (2) a causal connection between the injury and
the challenged action, and (3) a likelihood that the injury is redressible by a
favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

4

Defendants assert, and Plaintiff concedes, that the Eleventh Amendment
bars Plaintiff’s §§ 1983 and 1988 claims against PennDOT. See Doc. 26, p. 5-6.
7

(1992); Pa. Psychiatric Soc'y v. Green Spring Health Servs., 280 F.3d 278, 288 n.
8 (3d Cir. 2002). A plaintiff invoking federal jurisdiction bears the burden of
establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231
(1990).
A plaintiff who challenges a statute must demonstrate a realistic danger of
sustaining a direct injury as a result of the statute's operation or enforcement.
O'Shea v. Littleton, 414 U.S. 488, 494 (1974). However, he “does not have to
await the consummation of threatened injury to obtain preventive relief. If the
injury is certainly impending, that is enough.” Pennsylvania v. West Virginia, 262
U.S. 553, 593 (1923). When a plaintiff “do[es] not claim that [he has] ever been
threatened with prosecution, that a prosecution is likely, or even that a prosecution
is remotely possible,” he has not alleged a dispute susceptible to resolution by a
federal court. Younger v. Harris, 401 U.S. 37, 42 (1971).
However, as will be discussed later, Plaintiff can meet the standing
requirement as a third-party to challenge the regulation on behalf of his patients.
Inasmuch as Plaintiff has articulated injury to patients, to wit., that as a result of
the regulation, his patients may be less truthful and less candid with him which, in
turn, may compromise their treatment, injury has been established. Moreover, the
causation issue between the regulation and the alleged injury – patients being less
8

truthful and less candid with Plaintiff which, in turn, has the potential to affect
their treatment – has also been established. Finally, the prospective injunctive
relief is redressible. Consequently, the Plaintiff has established standing to bring
the present action.
(B) Preemption5
The Supremacy Clause6 invalidates all state laws that conflict or interfere
with an act of Congress. Rose v. Arkansas State Police, 479 U.S. 1 (1986). A
preemption analysis should begin with a recital of the analytical scheme by which
a court should be guided:
Under the supremacy clause, federal law may preempt state law in

5

Inasmuch as courts have held that the applicable federal regulation, 42
C.F.R. 2.20, which states that “no State law may either authorize or compel any
disclosure prohibited by these regulations,” does not give rise to a private cause of
action, Plaintiff concedes that he is unable to bring a preemption challenge
pursuant to § 1983. He asserts, however, that, to the extent that the complaint
seeks prospective injunctive relief, he has stated a claim under 28 U.S.C. § 1331.
6

The Supremacy Clause of the United States Constitution prohibits state
actions which interfere with matters where the federal government has spoken.
The seminal statement on preemption originated from Chief Justice Marshall in
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819): “States have no
power ... to retard, impede, burden or in any manner control, the operations of the
constitutional laws enacted by Congress to carry into execution the powers vested
in the general government. . . .”

9

any of three ways; first, when in enacting federal law, Congress
explicitly defines the extent to which it intends to preempt state law;
second, when even in the absence of express preemptive language,
Congress indicates an intent to occupy an entire field of regulation
and has left no room for states to supplement the federal law; and,
finally, when compliance with both state and federal law is
impossible or when state law stands as an obstacle to accomplishment
and execution of the full purposes and objectives of Congress.
Michigan Canners and Freezers Association, Inc. v. Agricultural
Marketing and Bargaining Board, 467 U.S. 461(1984); Capital Cities
Cable, Inc. v. Crisp, 467 U.S. 691 (1984).
Kentucky West Virginia Gas Co. v. Pennsylvania Public Utility Com'n,
837 F.2d 600, 605-06 (3d Cir. 1988)). “[T]he question whether a certain state
action is pre-empted by federal law is one of congressional intent.” Pilot Life Ins.
Co. v. Dedeaux, 481 U.S. 41, 45 (1987) (internal citations omitted).
It is not suggested herein that federal law explicitly preempts the regulation
or that Congress intended, via legislation, to preempt the entire field of medical
disclosures. Therefore a conflict between federal law and state law must be
present for the regulation to be preempted. See Lozano v. City of Hazleton,
--- F.3d ----, 2010 WL 3504538 (3d Cir. September 9, 2010). Such a conflict
exists where either (1) the state law “stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress” or (2) it is
“impossible for a . . . party to comply with both state and federal law.” Geier v.
Am. Honda Motor Co., Inc., 529 U.S. 861, 899 (2000); Pokorny v. Ford Motor
10

Co., 902 F.2d 1116, 1120 (3d Cir. 1990); C.E.R.1988, Inc. v. Aetna Cas. & Sur.
Co., 386 F.3d 263, 268 (3d Cir.2004).
The Supreme Court has urged caution in the application of conflict
preemption: “[B]ecause the States are independent sovereigns in our federal
system, we have long presumed that Congress does not cavalierly preempt
state-law causes of action.” C.E.R.1988, 386 F.3d at 269-70 (quoting Medtronic
Inc. v. Lohr, 518 U.S. 470, 485 (1996)). Thus, conflict preemption will be found
only if the need for it is clear. Pokorny, 902 F.2d at 1122. “[C]onsideration under
the Supremacy Clause starts with the basic assumption that Congress did not
intend to displace state law.” Bldg. & Constr. Trades Council of Metro. Dist. v.
Assoc. Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 224 (1993).
In the instant matter, Plaintiff claims that the PennDOT regulation is in
conflict with, and preempted by, the Drug Abuse Prevention, Treatment and
Rehabilitation Act, 42 C.F.R. §2.1, et seq., which was subsequently incorporated
under the Public Health Services Act (“PHSA”), 42 U.S.C. § 290dd-2. Under
PHSA, the disclosure of medical record information for those receiving or
participating in federally-assisted substance abuse treatment is restricted. Plaintiff
challenges the constitutionality of the PennDOT regulation both on its face and as
applied. Defendants contend, however, that there is no conflict inasmuch as the
11

PHSA applies only to federal substance abuse programs and operates neither to
create a privilege covering any and all records of substance abuse treatment nor to
prevent the disclosure of all medical information.
1.

Facially

With a facial challenge, a court can determine whether a regulation is valid
simply by looking at its terms, not its particular application. Doe v. City of Butler,
P.A., 892 F.2d 315, 325-26 (3d Cir.1989) (dissent) (quoting D. Mandelker, J.
Gerald, E. Sullivan, Federal Land Use Law § 1.04 at 1-10). A statute is not
facially unconstitutional unless “no set of circumstances exists under which the
Act would be valid.” Khouzam v. Attorney General of U.S., 549 F.3d 235, 258 (3d
Cir. 2008) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).
Consequently, if the regulation has any legitimate application, a facial challenge
must fail. See Wash. State Grange v. Wash. State Republican Party, 552 U.S.442,
449 (2008). To defeat a facial challenge to the regulation, Defendants need
"merely to identify a possible" valid application of the challenged statute.
Baltimore & Ohio R.R. Co. v. Oberly, 837 F.2d 108, 116 (3d Cir.1988); California
Coastal Comm’s v. Granite Rock Co., 480 U.S. 572, 593 (1987).7
7

Following recent case law in this circuit, the court declines to abandon the
Salerno holding in favor of Chevron (where a facial challenge was upheld despite
valid applications of the regulation) or an “undue burden” theory advanced by
12

Plaintiff maintains that the PHSA requires that all substance abuse treatment
records be kept confidential, except in limited circumstances, set out in the Act,
which do not apply to the instant case. Because the PHSA limits its application to
federally-assisted substance abuse programs, there would be no conflict between it
and PennDOT regulation’s reporting requirement regarding individuals to whom
Plaintiff provided medical services for substance abuse that were not part of a
federal programs or where he treated individuals for conditions other than
substance abuse treatment. Individuals in these circumstances would not fall
within the scope of PHSA and therefore the medical information sought by the
regulation would not be shielded from disclosure. Having articulated contexts in
which the regulation is valid, Defendants have surmounted a facial challenge to
the regulation.
2.

As applied

A statute that is not facially preempted by federal law may nonetheless be
preempted as it is applied. Plaintiff argues that the unconstitutional effect can
arise prior to enforcement of the regulation. Indeed, courts have allowed

Plaintiff. Brown v, City of Pittsburgh, 586 F.3d 263, 269 (3d Cir. 2009) (applying
Salerno analysis); Good v. Borough of Shelton, 2008 WL 4454058, *6 (M.D. Pa.
Sept. 30, 2008) (same); Khouzam v. Attorney General of U.S., 549 F.3d 235, 258
(3d Cir. 2008); Belistskus v. Pizzingrilli, 343 F.3d 632, 648 (3d Cir. 2003).
13

challenges to legal questions without requiring the plaintiff to incur the penalties
of non-compliance. Amnesty Intern. USA v. McConnell, 646 F.Supp. 2d 633,
649-50 (S.D.N.Y. 2009); Babbitt v. United Farm Workers National Union, 442
U.S. 289, 302-03 (1979) (granting standing for pre-enforcement challenge to
certain provisions of statute based on "realistic danger" of enforcement where
plaintiffs intended to engage in conduct "arguably prohibited by the statute");
Pacific Capital Bank, N.A. v. Connecticut, 542 F.3d 341, 350 (2d Cir. 2008)
(finding standing for pre-enforcement challenge by national bank to state statute
limiting certain interest rates where plaintiff "reasonably interpreted [the statute's]
limitation as, on its face, applying to [the plaintiff]").
Defendants maintain that, inasmuch as the State has never enforced the
provision through the imposition of a fine on health care providers who fail to
adhere to the reporting requirement regarding impaired or disabled patients, the
regulation cannot be said to conflict with federal law prior to its application. See
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (holding that
speculative or hypothetical conflict is not sufficient: only State law that actually
conflicts with federal law is preempted). Conceding that “the federal regulations
at issue prevent physicians from disclosing information about individuals in a
federally assisted alcohol and drug abuse program,” Defendants contend that the
14

absence of an application or interpretation of PennDOT regulations has avoided
the conflict with federal law. (See Doc. 32, p. 9).
Defendants do not maintain that the medical record of any individual
participant of a federally assisted alcohol or drug treatment program has never
been turned over to PennDOT pursuant to the mandatory reporting requirement.
Assuming that such information has been disclosed from a health care provider to
PennDOT, a violation of the federal provisions has occurred. It is the reporting or
disclosure, not the imposition of a penalty on health care providers for their failure
to report such information, that is the event that triggers an infraction of the
federal regulations.
The court agrees that, to the extent an “as applied” preemption challenge
can arise prior to enforcement of PennDOT’s regulations, Plaintiff has stated an
actual one, as opposed to a hypothetical one, by demonstrating herein that he must
choose between following the PennDOT regulation by disclosing the medical
record of individuals participating in a federally assisted alcohol or drug treatment
program or abiding by the federal regulations requiring such information to be
kept confidential. Consequently, the Motion for Judgment on the Pleadings
should be denied as it relates to Plaintiff’s claim that the PennDOT regulation is
preempted by federal law as applies to the disclosure of the medical record of any
15

individual participant of a federally assisted alcohol or drug treatment program.8
(C) Vagueness9
Plaintiff also challenges the language of the regulation as vague.
The question presented is whether the phrase “[o]ther conditions which, in the
opinion of a provider, is likely to impair the ability to control and safely operate a
motor vehicle.” 63 Pa. Code. § 83.5(b)(8). Contending that he is not properly
informed as to what type of opinion triggers the reporting requirement, that a
health care provider may not have the qualifications to render an opinion on
driving abilities and that the Medical Advisory Board is not authorized to require
reporting of any conditions other that those it specifies as having been diagnosed,
Plaintiff argues the regulation is impermissibly vague
A statute is “void for vagueness” if it “forbids or requires the doing of an act
in terms so vague that [persons] of common intelligence must necessarily guess at
its meaning and differ as to its application.” Connolly v. General Constr. Co., 269

8

The court recognizes that Plaintiff fails to distinguish how the permissive
reporting requirement that he advances would permit disclosure of such
information and/or would not conflict with federal law.
9

Defendants claim that while Plaintiff’s claims against Biehler may be
actionable under the 14th Amendment, they are not properly asserted under the 5th
Amendment inasmuch as there is no federal actor. Plaintiff does not challenge this
position and, consequently, Count II should be dismissed to the extent it seeks to
state a claim arising under the 5th Amendment.
16

U.S. 385, 391 (1926). Generally, the void-for-vagueness doctrine requires that a
standard define the conduct “with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352,
357 (1983). A court must ensure that a statute or standard is fair in that it is not so
vague that a party would not know what conduct is prohibited. San Filippo v.
Bongiovanni, 961 F.2d 1125, 1136 (3d Cir. 1992). Thus, a statute will be found
unconstitutionally vague if “men of common intelligence must necessarily guess
at its meaning.” Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973) (quoting
Connally, supra at 391). The inquiry is conducted on a case-by-case basis, and
the party opposing the statute or standard must show that it is vague as applied to
him. San Filippo, 961 F.2d at 1136.
Plaintiff first contends that the regulation sets forth no standard other than
the “opinion” of the health care provider, which is inadequate to determine what
reporting is required. He claims obscurity as to whether a lay or professional
opinion is to be the standard, whether he is required to report non-medical
conditions which may impair one’s ability to drive, or whether reporting of
conditions of which he is aware but which fall outside his area of expertise is
mandated. Defendants maintain that the regulation is not void for vagueness,
17

contending that the regulation itself is instructive on what is sought from health
care providers. The court agrees.
First, a person will not be deemed qualified to drive if he suffers from any
listed disabilities or “[o]ther conditions which, in the opinion of a provider, is
likely to impair the ability to control and safely operate a motor vehicle.” 67 Pa.
Code § 83.5(b)(8). Clearly the standard governing this opinion is the provider’s
professional opinion. Moreover, the phrase “likely to impair” does not require
health care providers to become assessors of driving skills and abilities as Plaintiff
argues. Without addressing the severity, duration or prognosis of a reportable
disorder or disability, and regardless of whether a person is driving or not, the
regulation merely requires health care provers such as Plaintiff to report
individuals with conditions which the health care provider opines may impact the
safe operation of a vehicle. Health care providers need not consider whether a
condition is temporary or permanent, treatable or untreatable or whether a patient
is driving or refraining from driving. Such inquiries are secondary to the presence
of any condition which the provider believes may affect one’s ability to safely
operate a car, and the existence of such variables with respect to any impairment
will not render the statute vague. This reporting requirement makes clear what
information is to be provided: “Physicians and other persons authorized to
18

diagnose and treat disorders and disabilities . . . shall report to the Department . . .
every person . . . diagnosed as having any specified disorder or disability[.]” 67
Pa. Code § 83.6. Compliance with this regulation, accordingly, requires the report
of only persons diagnosed with a specified disorder or disability.
Finally, Plaintiff challenges the Medical Advisory Board’s definition of
reportable impairments, contending it has failed to “define” disorders by leaving to
a provider’s opinion non-specified disorders encompassed by the regulation.
However, the Medical Advisory Board has not abrogated the authority it has been
delegated, to wit., to define disorders and disabilities affecting the ability to drive
safely, by placing additional reporting requirements, beyond the listed and
specified disorders, for those conditions a provider feels are likely to impair one’s
ability to drive. See 75 Pa. C.S.A. § 1518(a). A catch-all phrase such as “[o]ther
conditions which, in the opinion of a provider, is likely to impair the ability to
control and safely operate a motor vehicle” is general enough to encompass
impairments which may not be listed but which nonetheless would have an effect
on the ability to drive safely while also being sufficiently specific as to what is
required of health care providers.
Inasmuch as “ordinary persons using ordinary common sense” would be
aware or what is required, the regulation is not void for vagueness. San Filippo,
19

supra at 1136 (citing Arnett v. Kennedy, 416 U.S. 134, 159 (1974)). This
argument should, accordingly, be rejected.
(D) Right to Privacy
Plaintiff contends next that the PennDOT regulation violates his right to
privacy. Specifically, he argues that therapists and other health care providers
must have the trust and confidence of their patients to properly treat them, and that
the regulation infringes into the privacy of information contained in medical
records. He further asserts that he has standing to raise the issue on behalf of
those he treats.
Defendants claims that the regulation is rationally related to a compelling
state interest and has only an indirect and incidental effect on Plaintiff’s practice.
Moreover, they maintain that any loss of business suffered by Plaintiff as a result
of the regulation is not protected.
(1)

Standing10

Ordinarily, “a litigant must assert his or her own legal rights and interests,
and cannot rest a claim to relief on the legal rights or interests of third parties."
Powers v. Ohio, 499 U.S. 400, 410 (1991); see also Barrows v. Jackson, 346 U.S.

10

The court notes that the Defendants do not challenge Plaintiff’s standing
as it related to his ability to assert a privacy claim on behalf of his patients.
20

249, 255 (1953). In limited circumstances, however, the Supreme Court has
approved third party standing where the policies supporting the general rule are
not served. See Singleton v. Wulff, 428 U.S. 106, 114-15 (1976). “Where
rightholders are unable to raise their own rights and their relationship with the
plaintiff suggests an identity of interests, courts can be more certain that the
litigation is necessary and that the issues will be framed clearly and effectively.”
Amato v. Wilentz, 952 F.2d 742, 748 (3d Cir. 1991) (citing id. at 114-16).
Third-party standing requires the satisfaction of three preconditions: 1) the
plaintiff must suffer injury; 2) the plaintiff and the third party must have a "close
relationship"; and 3) the third party must face some obstacles that prevent it from
pursuing its own claims. Pennsylvania Psychiatric Soc. v. Green Spring Health
Services, Inc., 280 F.3d 278, 288-89 (3d Cir. 2002) (citations omitted).
A court must balance these factors to determine if third-party standing is
warranted. Id. at 289.
Plaintiff first asserts the regulation in question has caused injury to him by
creating a dilemma of violating state law by not reporting patients who are
potentially unsafe drivers or by forsaking his code of ethics which requires him to
treat his patients through the exchange of candid yet confidential information.
Undermining a health care provider’s ability to effectively treat his patients states
21

sufficient injury to meet the first element of a third-party standing inquiry.
As to the second factor, Plaintiff submits that the psychiatrist-patient
association is sufficiently special to permit him to advocate and be an effective
proponent of his patients and their rights. Courts have recognized that the
physician-patient relationship is one conferring third-party standing on physicians
on behalf of patients to challenge a statute. See Singleton, supra; Planned
Parenthood v. Farmer, 220 F.3d 127, 147 & n. 10 (3d Cir. 2000); Am. Coll. of
Obstetricians & Gynecologists v. Thornburgh, 737 F.2d 283, 290 & n. 6 (3d Cir.
1984) (collecting cases where physicians allowed to assert patients' claims).
Consequently, the court concludes that this prong is satisfied.
Finally, Plaintiff maintains that the stigma associated with mental health
treatment presents an obstacle to a challenge of the PennDOT regulation by
patients themselves. Such a desire to protect privacy has been found to be an
impediment to litigation sufficient to meet the third factor. See Singleton, supra;
Pa. Psychiatric Soc'y, supra. The Plaintiff has, accordingly, established thirdparty standing.
2.

Patients right to privacy

Plaintiff contends that there is a constitutional right to privacy regarding
information in one’s medical file(s) upon which the PennDOT regulation infringes
22

by requiring disclosure of certain information by health care providers. While
recognizing such a privacy right, Defendants submit that this right is not absolute.
Citizens for Health v. Leavitt, 428 F.3d 167, 178 n.10 (3d Cir. 2005) (“[T]he
question of the scope of the constitutional right to privacy in one's medical
information is largely unresolved.”); Whalen v. Roe, 429 U.S. 589, 602 (1977)
(recognizing that, despite constitutionally protected interest in avoiding disclosure
of personal matters, “disclosures of private medical information to doctors, to
hospital personnel, to insurance companies, and to public health agencies are often
an essential part of modern medical practice even when the disclosure may reflect
unfavorably on the character of the patient”); United States v. Westinghouse Elec.
Corp., 638 F.2d 570, 578 (3d Cir. 1980) (“[T]he right of an individual to control
access to his or her medical history is not absolute.”).
“[T]he Constitution embodies a promise that a certain private sphere of
individual liberty will be kept largely beyond the reach of government.”
Thornburgh v. American College of Obstetricians, 476 U.S. 747, 772 (1986). This
constitutional right to privacy extends to “the individual interest in avoiding
disclosure of personal matters.” Whalen v. Roe, supra at 599; Trade Waste
Management Ass'n, Inc. v. Hughey, 780 F.2d 221, 223 (3d Cir.1985); see also
Kurland, The Private I, The University of Chicago Magazine 7, 8 (Autumn 1976)
23

(“The concept of a constitutional right of privacy [includes] the right of an
individual not to have his private affairs made public by the government.”).
Courts have held that medical records are clearly within this constitutionally
protected sphere. See, e.g., Whalen, 429 U.S. at 598; Westinghouse Elec. Corp.,
638 F.2d at 577 (“There can be no question that an employee's medical records,
which may contain intimate facts of a personal nature, are well within the ambit of
materials entitled to privacy protection.”); Shoemaker v. Handel, 608 F.Supp.
1151, 1159 (D.N.J.1985) ( “There is a privacy interest in avoiding disclosure to
government agents of personal medical information.”).
Therefore, the court will assume that, while not fundamental, there is a
constitutionally-protected right to privacy of an individual’s medical information
which may be implicated by operation of the regulation. It must be determined,
therefore, whether the regulation violates the privacy rights of Plaintiff’s patients.
3.

Balance of right to privacy v. state interest

“In recognition that the right of an individual to control access to her or his
medical history is not absolute, courts and legislatures have determined that public
health or other public concerns may support access to facts an individual might
otherwise choose to withhold.” Westinghouse Elec. Co., supra at 578.
Accordingly, “disclosures regarding past medical history, present illness, or the
24

fact of treatment have been required.” Id. In instances where a reporting
requirements has been upheld include instances where the State “advanced a need
to acquire the information to. . . control threats to public health.” Id.
Any privacy rights must be balanced against the legitimate interests of the
State in securing such information. Moreover, the regulation must be narrowly
tailored to “express only those compelling state interests.” McKenna v. Fargo,
451 F.Supp. 1355, 1381 (D.N.J. 1978). Factors to be considered by a court in
determining whether an intrusion into an individual's privacy is justified include:
(1) the type of record requested, (2) the information it does or might
contain, (3) the potential for harm in any subsequent nonconsensual
disclosure, (4) the injury from disclosure to the relationship in which
the record was generated, (5) the adequacy of safeguards to prevent
unauthorized disclosure, (6) the degree of need for access, and (7)
whether there is an express statutory mandate, articulated public
policy, or other recognizable public interest militating toward access.
Westinghouse Elec. Co. at 578.
Defendants argue that even if Plaintiff’s patients have a cognizable right to
privacy, the Commonwealth has a compelling state interest in maintaining safe
roadways, which outweighs any privacy right raised by Plaintiff. They contend,
further, that the regulation is rationally related to the state interest and narrowly
tailored to achieve that interest. See McKay v. Com., 415 A.2d 910 (Pa.
Commw.1980), appeal dismissed 452 A.2d 1019 (allowing disclosure of
25

information obtained by psychiatrist from operator for purpose of determining
operator's competency to operate motor vehicle did not violate operator's
constitutional right of privacy in light of fact that, though allowing such disclosure
constituted an intrusion on operator's right to privacy, such intrusion was
outweighed by public interest in having incompetent drivers removed from
highways). In balancing the Westinghouse factors, Defendants contend only two
–injury to the physician-patient relationship and public disclosure could tend to
embarrass patients–weight against the intrusion into the privacy of Plaintiff’s
patients. The other five elements shift the balance in Defendants favor: the
information sought is not entire medical files but limited to the diagnosis of
specified conditions, with some personal information such as name, address date
of birth, already known by PennDOT; the disclosures are kept confidential and are
used for a limited purpose with safeguards in place to prevent unauthorized
disclosure; the Commonwealth need for access to this information to ensure the
competency of drivers on its roads, and health care providers are arguably in the
best position to provide this information; and the regulation in question was
enacted pursuant to express statutory mandate to ensure the legitimate state
interest of promoting the safety of Pennsylvania’s roads.
Plaintiff agrees that Pennsylvania has a legitimate state interest–to promote
26

safe roadways in the Commonwealth–but maintains that mandatory reporting
requirement is not narrowly tailored to achieve that goal. He argues, further, that
there are less intrusive means to accomplish the State’s objective. While
suggesting that a permissive reporting requirement, as adopted in other states,
would be a less intrusive means to accomplish the legitimate goal of safe
roadways, Plaintiff does not specify how this optional reporting would increase
road safety. Such a permissive reporting standard would place the burden of
evaluating driving abilities on the physician such as Plaintiff, who has asserted
that health care professionals are not assessors of driving skills. Moreover, an
optional reporting standard would undoubtedly result in different assessments of
similar impairments and produce less uniform outcomes throughout the
Commonwealth.
Further, acknowledging that PennDOT recalled 22% of the licenses of those
individuals reported under the regulation does not necessarily lead to a conclusion
that the other 78% of cases impermissibly infringed on the patients’ right to
privacy. It may, rather, suggest that the license recall is not automatic upon a
report, that reporting creates a presumption, but not a conclusion, of unfitness
and/or that PennDOT engages in a review process to ensure only those truly unfit
drivers are disqualified from driving.
27

Furthermore, the regulation is narrowly tailored to serve a compelling state
interest. See A.A. ex rel M.M. v. New Jersey, 341 F.3d 206, (3d Cir.2003)
(rejecting right to privacy claim because the compelling interest of the prevention
of sex offenses outweighed the sex offender's right to privacy); Paul P. v. Farmer,
227 F.3d 98, 107 (3d Cir.2000) (same). If PennDOT instead required all drivers to
submit to periodic examinations to test their competency to operate a vehicle, such
a requirement would not be sufficiently narrow to achieve its interest in promoting
safe driving. See Witthoeft v. Kiskaddan, 733 A.2d 623, 627 (Pa. 1999). In other
words, protection of motorist and their passengers on Pennsylvania roadways is a
compelling state interest and the reporting requirement of those impaired by
certain conditions is narrowly tailored to serve that interest. Therefore, the
regulation does not violate the privacy rights of Plaintiff’s patients and this claim
should be dismissed.
Finally, the court is not persuaded that the statutory psychiatrist-patient
privilege11 outweighs the legitimate state interest served by disclosure. Clearly
11

The applicable statutory provision, governing the confidential
communications to psychiatrists or licensed psychologists, provides:
No psychiatrist or person who has been licensed under the act of
March 23, 1972 (P.L. 136, No. 52), [FN1] to practice psychology
shall be, without the written consent of his client, examined in any
civil or criminal matter as to any information acquired in the course
28

this privilege is not absolute and does not prevent any and all disclosures of
medical information. The statutory privilege addresses the disclosure of medical
information via testimony, rather than the type of disclosure sought by the
regulation–reports to a state agency. Moreover, “opinions, observations, and
diagnosis are not protected by the privilege[.]” Com. v. Moody, 843 A.2d 402, 406
(Pa. Super. 2004); Com. v. G.P., 765 A.2d 363 (Pa. Super. 2000).
In enacting the statutes governing the psychiatrist-patient privilege and the
reporting requirement, the court cannot conclude, as Plaintiff infers, that the
Pennsylvania General Assembly create an exception for information acquired
within the psychiatrist-patient relationship to be exempted from the reporting
requirement. Additionally, although deference is due to the opinion of the
medical community on medical issues, the issue presently raised in is not solely a
medical one. Consequently, the medical profession’s approach as to the reporting
of impaired or disabled patients, while informative, must be considered along with
other important factors including governmental authority and public safety.

of his professional services in behalf of such client. The confidential
relations and communications between a psychologist or psychiatrist
and his client shall be on the same basis as those provided or
prescribed by law between an attorney and client.
42 Pa.C.S.A. § 5944
29

(E) Substantive Due Process
Plaintiff next asserts that the PennDOT regulation violates his substantive
due process rights by interfering with his ability to practice his profession. The
Fourteenth Amendment provides that no State shall “deprive any person of life,
liberty, or property, without due process of law.” U.S. CONST. amend XIV, § 2.
The substantive component bars states from infringing upon fundamental rights
that are deeply rooted in history and tradition unless the infringement is narrowly
tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U.S.
702, 721 (1997). When fundamental rights are not implicated or infringed, state
statutes are reviewed under a rational basis test and upheld if it bears some rational
relation to some legitimate end. Lawrence v. Texas, 539 U.S. 558, 588 (2003);
Vacco v. Quill, 521 U.S. 793, 799 (1997); Nicholas v. Penn State University, 227
F.3d 133, 139 (3d Cir. 2000); Heffner v. Murphy, 590 F.Supp.2d 710, 723 (M.D.
Pa. 2008). When applying a rational basis test to a statute, there is a presumption
that the statute is valid. Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440
(1985).
The right to practice one's profession, the right Plaintiff suggests is
compromised by the regulation, is not a “fundamental right.” Heffner, supra;
Meier v. Anderson, 692 F.Supp. 546, 550 (E.D. Pa. 1988). Under the “rational
30

basis standard,” as long as the regulation is rationally related to a legitimate
government interest, substantive due process rights have not been violated.
Lawrence, supra at 578; Heffner, supra. The regulation need not be narrowly
tailored to the legitimate end sought by the government. Koorn v. Lacey Twp., 78
Fed.Appx. 199, 202 (3d Cir. 2003). A minimum rationality standard is an
extremely difficult standard for a plaintiff to meet. Knight v. Tape, Inc., 935 F.2d
617, 627 (3d Cir.1991).
Plaintiff classifies the impact of the regulation as impairing his ability to
effectively treat his patients given that the regulation may obligate him to breach
the confidentiality essential to the physician-patient relationship. Assuming, as
Plaintiff asserts, the harmful effect the regulation has on the physician-patient
relationship, it’s purpose–promoting the safe operation of vehicles by competent
drivers on Pennsylvania’s roadways–has been found to be rationally related to a
legitimate state interest. See Sharon v. Larson, 650 F.Supp. 1396, 1404 (E.D. Pa.
1986); McKay v. Com., 415 A.2d 910, 915 (Pa. Commw 1980).
As Defendants assert, any effect the regulation has in Plaintiff’s practice is an
unintended, indirect and incidental consequence of the regulation not actionable as
a substantive due process claim under the Fourteenth Amendment. Consequently,
Plaintiff’s substantive due process claim is without merit and should be dismissed.
31

(F) First Amendment
The First Amendment to the U.S. Constitution proscribes federal action
“respecting an establishment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, ... or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.” Defendants
contend that Plaintiff has failed to state a claim of freedom of association under
the First and Fourteenth Amendment, asserting that there is no such constitutional
protection afforded the psychiatrist-patient relationship and, moreover, that the
PennDOT regulation does not interfere with that association. Plaintiff, in turn,
argues that the regulation compels health care providers such as himself to breech
the physician-patient confidentiality, an element crucial for effective treatment.
“Freedom of association is a constitutional right guaranteed under the first
amendment as a fundamental element of personal liberty.” Ziegler v. County of
Bucks, Civ. A. No. 98-4561, 1992 WL 129643, *6 (E.D. Pa. June 8,1992).
The Constitution guarantees, and our courts have recognized, a right to associate
for the purpose of engaging in those activities protected by the First Amendment,
such as, speech, assembly, petition for the redress of grievances, and the exercise
of religion. Id. (citing Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984)).
32

Plaintiff, maintains that a physician-patient relationship has protection under the
First Amendment and state action may be enjoined where it places barriers to the
full disclosure of all facts needed between these two parties. See Conant v.
Walters, 309 F.3d 629 (9th Cir. 2002), cert denied, Walters v. Conant, 540 U.S.
946 (2003) (state regulation that threatened to punish physicians who spoke to
their patients about the use of medical marijuana struck at core of First
Amendment because recommendation itself did not constitute illegal conduct).
As Defendants observe, there are two types of associations protected by the
Constitution: expressive and intimate. In Roberts v. United States Jaycees, 468
U.S. 609, 618 (1984), the Supreme Court identified a distinction between's one's
freedom of “intimate association” and his or her freedom of “expressive
association.” The first type of association protects the rights of individuals to
associate for purposes of engaging in activities protected by the First Amendment,
such as “[a]n individual's freedom to speak, to worship, and to petition the
government for the redress of grievances . . . .” Roberts, 468 U.S. at 622 (citations
omitted) (“According protection to collective effort on behalf of shared goals is
especially important in preserving political and cultural diversity and in shielding
dissident expression from suppression by the majority”). The second type protects
certain close and intimate human relationships, such as family relationships.
33

Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435, 441-42 (3d Cir.
2000).
Both freedoms are firmly embedded within the Supreme Court's
jurisprudence. However, only the freedom of expressive association is based upon
the First Amendment. The freedom of intimate association, which is based on the
Due Process Clause of the Fourteenth Amendment, is properly characterized as a
substantive due process right and recognizes the right of an individual to develop
deeply personal attachments with other individuals. Id. at 620. Because the right
of expressive association, unlike the distinct right of intimate association, is
grounded in the First Amendment, the court understands Plaintiff’s present claims
to be grounded within the context of expressive association.
In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Supreme Court
used a three step process to analyze expressive association claims. Pi Lambda,
supra at 442. A court must first determine whether the group or, here, the
physician-patient affiliation, has engaged in expressive association. If expressive
association is found, the court must determine whether the state action at issue
significantly affected the group's ability to advocate its viewpoints. See Dale, at
2452. Finally, state's interest implicated in its action must be weighed against the
burden imposed on the associational expression to determine if the state interest
34

justified the burden. See id. at 2456.
The initial question, therefore, is whether the physician-patient relationship,
in general terms, constitutes an expressive association between the provider and
those he treats. There is no requirement that an organization be primarily political
(or even primarily expressive) in order to receive constitutional protection for
expressive associational activity. The Supreme Court has made it clear, however,
that there is a de minimis threshold for expressive activity claims. In City of
Dallas v. Stanglin, 490 U.S. 19 (1989), the plaintiffs claimed that they had an
expressive associational interest in mingling at a dance hall. The Supreme Curt
concluded that, although the patrons were associating with one another, they were
not engaging in First Amendment-protected expression while doing so. “There is
no suggestion that these patrons ‘take positions on public questions' or perform
any of the other similar activities” such as engaging in “a variety of commendable
service activities” and “humanitarian service [and] high ethical standards in all
vocations. Phi Lambda, supra at 444 (citing id.) (in turn, quoting Board of
Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 548
(1987)). Consequently, protected expression does not include any possible
expression. See Stanglin, supra. (“It is possible to find some kernel of expression
in almost every activity a person undertakes-for example, walking down the street
35

or meeting one's friends at a shopping mall-but such a kernel is not sufficient to
bring the activity within the protection of the First Amendment.”).
Furthermore, the freedom of association doctrine is inapplicable to a
physician-patient relationship. Conant v. McCoffey, No. 97-0130, 1998 WL
164946, * (N.D. Cal. March 16, 1998). Plaintiff contends that the
the case relied upon by Defendants pre-dates the medical marijuana case of
Conant v. Walters, which, as noted above, determined the state regulation
prohibiting physicians from discussing the medicinal use of marijuana with their
patients was properly enjoined as violative of the First Amendment. However, in
recognizing the First Amendment protection afforded to such situations, Conant v.
Walters addressed an issue of free speech, not free association. Consequently, it is
distinguishable from the holding of Conant v. McCoffey and the instant case.
Additionally, the Conant v. McCoffey holding is persuasive, noting that “[t]he
freedom of association privilege grows out of NAACP v. Alabama, 357 U.S. 449
(1958), a case that prohibited disclosure of NAACP membership lists. The
Supreme Court grounded its decision on the importance of “group association . . .
for the advancement of beliefs and ideas.” Id. at *3 (quoting NAACP at 460). The
decision further observed:

36

Moreover, the freedom of association cases “protect ‘freedom of
association for the purpose of advancing ideas and airing grievances
In this case, the patients and doctors are not meeting in order to
advance particular beliefs or points of view; they are seeking and
dispensing medical treatment. The fact that their treatment
discussions may involve the politically-charged topic of medical
marijuana does not transform their relationship into the kind of
advocacy association described in NAACP. For these reasons, the
Court does not believe that the NAACP doctrine applies to the
relationships or communications at issue.
Id. (citations omitted).
The court concludes that this reasoning is persuasive and that, despite the
need for full disclosure and confidentiality in communications between a patient
and his physician, a free association claim warranting constitutional protection
does not lie therein. The physician-patient association fails to share sufficiently
similar characteristics with those groups to whom First Amendment protection to
freely associate has been afforded. Consequently, it is recommended that Count
III be dismissed.
(G) ADA and Rehabilitation Act
Plaintiff also brings claims under Titles II of the ADA and Section 504 of
the Rehabilitation Act of 1973. It is worth recognizing that the ADA and the
Rehabilitation Act are generally interpreted consistently. Emerson v. Thiel
College, 296 F.3d 184, 189 (3d Cir. 2002).

37

Title II of the ADA is intended to prohibit discrimination by governmental
entities in their operation of public services, programs and activities. The relevant
statutory provision provides:
[N]o qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.
42 U.S.C. §12132. For purposes of this section, “public entity” includes “ any
department, agency, special purpose district, or other instrumentality of a State or
States or local government[.]” 42 U.S.C.A. § 12131(1). “In order to establish a
prima facie case of discrimination under the ADA, a plaintiff must prove (1) that
he is disabled, (2) that he is a qualified individual with a disability, and (3) that he
has suffered an adverse action because of that disability.” Derrick F. v. Red Lion
Area School Dist., 586 F.Supp.2d 282, 299 (M.D. Pa. 2008); Turner v. Hershey
Chocolate U.S., 440 F.3d 604, 611 (3d Cir.2006) (citations omitted).
The Rehabilitation Act provides, in pertinent part: “No otherwise qualified
individual with a disability in the United States . . . shall, solely by reason of her or
his disability, be excluded from the participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity receiving Federal
financial assistance . . .” 29 U.S.C. § 794(a). Section 504 gives rise to an implied

38

private right of action in favor of persons who allege to have been subjected to
illegal discrimination based on handicap. Strathie v. Department of
Transportation, 716 F.2d 227, 229 (3d Cir.1983). Under §504, a plaintiff must
show that: “1) he or she is a ‘handicapped individual,’ 2) he or she is ‘otherwise
qualified’ for participation in the program, 3) the program receives ‘federal
financial assistance,’ and 4) he or she was ‘denied the benefits of’ or ‘subject to
discrimination’ under the program. Nathanson v. Medical College of
Pennsylvania, 926 F.2d 1368, 1380 (3d Cir. 1991) (quoting Strathie, supra at 230).
The question presented instantly is whether Plaintiff’s treatment of his
patients is included within the meaning of services, programs or activities under
these Acts. Plaintiff asserts that PennDOT, as a public entity, engages in direct
discrimination by encroaching into the constitutionally-protected right to privacy,
to wit., the confidential trust in the psychiatrist-patient relationship, through the
regulation’s reporting requirement. As a result, Plaintiff argues, his patients are
less likely to be candid with him in their treatment. Defendants contend, however,
that both provisions of the statutes Plaintiff seeks to invoke “prohibit public
entities from excluding disabled individuals from participation in or benefitting
from governmental services, programs or activities.” (Doc. 21, p. 30-31). To state
a cause of action, they submit, such discrimination must be in a service, program
39

or activity of PennDOT itself, not the denial of access to Plaintiff’s medical
services. Inasmuch as Plaintiff challenges his patients right to access his services,
there is no state service, program or activity at issue in the present action to trigger
the application of either Title II or § 504.
There is a split of authority as to whether the second clause of § 12132 of
Title II prohibits discrimination only in a public entity’s services, programs or
activities, as Defendants maintain, or whether this language is a catch-all phrase
that prohibits all discrimination by a public entity and thus does not limit coverage
to conduct that occurs within the services, programs or activities of a public entity,
as Plaintiff argues. Courts within this district have interpreted this language to
limit its application. “Although the second clause of § 12132 appears to be
all-encompassing, it is limited by Title II's definition of ‘qualified individual with
a disability.’” Pennsylvania State Troopers Ass'n v. Pennsylvania, No. 1:06-CV1079, 2007 WL 853958, *6 (M.D. Pa. March 20, 2007). Moreover:
A plaintiff is not “qualified” to bring any Title II claim unless he or
she “meets the essential eligibility requirements” of a government
service, program, or activity provided by a public entity. The second
clause of § 12132 therefore must relate to a government service,
program, or activity; otherwise a plaintiff is not “qualified” to bring a
claim under that clause.
McSherry v. Department of Labor & Industry, Civ. No. 1-04-CV-132, 2006 WL

40

463157, *10 (M.D. Pa. Feb. 23, 2006) (citing Zimmerman v. Or. Dep't of Justice,
170 F.3d 1169, 1175-76 (9th Cir. 1999)). In the complaint, Plaintiff does not
allege that the Defendants discriminate against him, or his patients, with respect to
a service, program or activity the Commonwealth provides or that there are
“public service[s] available to the non-disabled that [D]efendants are denying [his
patients] because of their disability.” Cornell Companies, Inc. v. Borough of New
Morgan, 512 F. Supp. 2d 238, 264-65 (E.D. Pa. 2007) (finding that Plaintiff failed
to allege that the defendants discriminated against it and its students with respect
to specific services, programs, or activities provided by the Borough defendants).
Plaintiff instead alleges that an incidental effect of the regulation is the
infringement on the right to privacy through the compromised communication
between him and his patients. The professional care he provides his patients is not
a “governmental service, program or activity” so as to trigger the operation of
Title II. See Zimmerman, supra. Consequently, having failed to establish a
“service, program or activity” of PennDOT that discriminates in its benefits to his
patients, Plaintiff has not established a prima facie case of discrimination under
Title II.
With respect to the Rehabilitation Act claim, although § 504 was initially
adopted to give handicapped individuals equal access to employment
41

opportunities and educational programs, it has been applied in the medical context
to ensure that individuals are not denied treatment or discriminated against by
federally-supported entities because of a disability. Woolfolk v. Duncan, 872
F.Supp. 1381, 1388 (E.D. Pa.1995). For § 504 purposes, a “program or activity”
that receives federal funds is defined as:
all of the operations of ... an entire corporation, partnership, or other
private organization, or an entire sole proprietorship ... which is
principally engaged in the business of providing ... health care ... any
part of which is extended Federal financial assistance.
29 U.S.C. § 794(b). “Receipt of federal funding in the form of Medicare or
Medicaid payments for the care rendered to any patient brings the treating
physician, hospital or medical center within the scope of the Act.” Sharrow v.
Bailey, 910 F.Supp. 187, 193 (M.D. Pa. 1995). As applied to the receipt of
medical context, section 504 has been interpreted to prevent discrimination in the
receipt of medical treatment.
However, Plaintiff does not allege he himself violates § 504 through
discrimination against his patients but rather he accuses PennDOT of
discrimination through its regulation. Having determined that PennDOT has the
authority to set standards governing the safe operation of motor vehicles since it is
rationally related to a legitimate state interest, the regulation does not run afoul of

42

§ 504 of the Rehabilitation Act. Given the related purposes of § 504 and the ADA
and the fact, as noted above, that they are regularly interpreted and applied
consistently, the court concludes that Plaintiff cannot establish that his patients
were denied benefits or subject to discrimination “under the program” inasmuch as
he does not allege discrimination on his part through his practice against his
patients.
With respect to the license recall procedure, Plaintiff contends that
PennDOT discriminates against his patients based on their disability by summarily
recalling, without investigation, their driver’s licenses based on the
unsubstantiated report(s) of a physician. See 75 Pa. C.S.A. § 1519(c). Defendants
maintain that the recall procedure is not discriminatory in that it affords all
individuals, the disabled and non-disabled alike, the same due process. They
observe, further, that a driver may challenge a recall by appealing the matter to
state court, where PennDOT bears the burden of demonstrating an incompetency
to drive, which can be rebutted. 75 Pa. C.S.A. § 1519(c). Moreover, the due
process challenge to this statute has been rejected by Pennsylvania courts, which
have held that recalled drivers are not “qualified individuals” because they fail to
meet the minimum standards to safely operate a car. Additionally, Plaintiff has
not identified how non-disabled but unfit drivers would fare better under the recall
43

provision than his disabled patients. In fact, the recall statute does not
differentiate with regard to disability but rather with respect to competency to
safely operate a motor vehicle, though it may thereby affect some disabled drivers.
Given PennDOT’s statutory authority to determine a licensee's competency to
operate a vehicle, and based on its legitimate state interest in maintaining safe
roadways, such distinction amongst drivers cannot be said to be discriminatory.
Therefore, judgment should be entered for Defendants on Plaintiff’s ADA
and Rehabilitation Act claims.
V. Recommendation
Based on the foregoing, it is respectfully recommended that
V. Recommendation
Based on the foregoing, it is respectfully recommended that:
1.

The Motion for Judgment on the Pleadings (Doc. 18) be GRANTED to the
extent the Complaint attempts to state a cause of action pursuant to 42
U.S.C. §§ 1983 and 1988;

2.

The Motion for Judgment on the Pleadings (Doc. 18) be DENIED as to
Count I (Supremacy Clause), to the extent PennDOT’s regulations seek
disclosure of the medical record of any individual participating in a
federally assisted alcohol or drug treatment program, and GRANTED in all
other respects;

3.

The Motion for Judgment on the Pleadings (Doc. 18) be GRANTED as to
Count II (vagueness claim under the Fifth and Fourteenth Amendments);

44

4.

The Motion for Judgment on the Pleadings (Doc. 18) be GRANTED as to
Count III (substantive due process claim arising under the Fifth and
Fourteenth Amendments);

5.

The Motion for Judgment on the Pleadings (Doc. 18) be GRANTED as to
Count IV (freedom of association claim arising under the First and
Fourteenth Amendments);

6.

The Motion for Judgment on the Pleadings (Doc. 18) be GRANTED as to
Count V (right to privacy claim under the Ninth and Fourteenth
Amendments);

7.

The Motion for Judgment on the Pleadings (Doc. 18) be GRANTED as to
Count VI (claims of violations of the ADA);

8.

The Motion for Judgment on the Pleadings (Doc. 18) be GRANTED as to
Count VII (claims of violations of Section 504 of the Rehabilitation Act);

9.

The Motion for Judgment on the Pleadings (Doc. 18) be GRANTED and
Plaintiff’s request for attorneys fees BE DENIED pursuant to 42 U.S.C. §
1988 in association with this action.12
12

It does not appear that attorneys’ fees are recoverable under §1988
inasmuch as that statutory provision limits such an award to claims not presented
herein. The relevant statutory provision provides:
In any action or proceeding to enforce a provision of sections 1981,
1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law
92-318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom
Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.], the Religious
Land Use and Institutionalized Persons Act of 2000 [42 U.S.C.A. §
2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A.
§ 2000d et seq.], or section 13981 of this title, the court, in its
discretion, may allow the prevailing party, other than the United
States, a reasonable attorney's fee as part of the costs, except that in
any action brought against a judicial officer for an act or omission
taken in such officer's judicial capacity such officer shall not be held
45

Date: October 6, 2010

s/ William T. Prince
William T. Prince
United States Magistrate Judge

liable for any costs, including attorney's fees, unless such action was
clearly in excess of such officer's jurisdiction.
42 U.S.C. § 1988(b).
46