BEHAR v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION et al

Filing 92

MEMORANDUM AND ORDER - It is hereby ORDERED that: 1. Defts' MSJ 68 is GRANTED.; 2. Pltf David Behar's MSJ 72 is DENIED.; 3. Clrk of Ct directed to CLOSE case. (See memo & order for complete details.) Signed by Honorable Christopher C. Conner on 2/5/13. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAVID BEHAR, M.D.,
Plaintiff,
v.
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION, and
ALLEN BIEHLER,
Defendants

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Civil Action No. 1-09-CV-02453
(Judge Conner)

MEMORANDUM
Presently before the court in the above-captioned matter are the crossmotions for summary judgment filed by plaintiff David Behar, M.D. (“Behar,” or
“Dr. Behar”) (Doc. 72), and by defendants Allen Biehler and the Pennsylvania
Department of Transportation (collectively, “PennDOT”) (Doc. 68). The motions
have been fully briefed, and are ripe for disposition. For the reasons that follow, Dr.
Behar’s motion for summary judgment will be denied, and PennDOT’s motion for
summary judgment will be granted.
I.

Procedural and Factual History
Dr. Behar is a licensed psychiatrist, and has practiced psychiatry in

Pennsylvania since 1980, maintaining his practice in the city of Bethlehem. As part
of his psychiatry practice, Dr. Behar has participated in a number of federally
assisted substance abuse treatment programs. These programs are compensated,
at least in part, through Medicaid, and provide treatment for both male and female
recovering addicts; some operate as residential programs and others provide
treatment through outpatient facilities.

The instant motions arise out of a lawsuit Dr. Behar filed on June 8, 2009. Dr.
Behar challenges the constitutionality of the regulations set forth in 67 PA . CODE §
83, which require, inter alia, that certain healthcare providers report to PennDOT
any individual who suffers from any number of enumerated mental or physical
infirmities, which may impair that person’s ability to drive a motor vehicle.
Dr. Behar has advanced a number of theories under which the instant
regulations are invalid, including that they are preempted by existing federal law
under the Supremacy Clause, U.S. CONST. art. VI, cl. 2, that they violate the Due
Process Clauses of the Fifth and Fourteenth Amendments, the right to freedom of
association under the First and Fourteenth Amendments, privacy rights under the
Ninth and Fourteenth Amendments, Article I, § 1 of the Pennsylvania Constitution,
The Americans With Disabilities Act, 42 U.S.C. § 12135 et seq., and Section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) et seq. (See Doc. 1). In his Report
and Recommendation (Doc. 37), United States Magistrate Judge William T. Prince
recommended that the defendants’ motion for judgment on the pleadings (Doc. 18)
be granted in part and denied in part. This court adopted Magistrate Judge
Prince’s recommendation, (see Doc. 52), and dismissed with prejudice all of Dr.
Behar’s claims save his as applied federal preemption claim.
The parties then entered discovery. On May 27, 2011, PennDOT propounded
interrogatories on Dr. Behar requesting, inter alia, that he identify any and all
patients whom Dr. Behar or another physician had reported or threatened to report
to PennDOT, and who subsequently had their driver’s licenses suspended or
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revoked as a result. (See Doc. 63 at 2-5). Dr. Behar opposed this request. After a
period of negotiation, PennDOT requested that the court intervene and order a
date certain by which Dr. Behar must respond to the interrogatories. On August 2,
2011, the court entered an order directing Dr. Behar to respond to the
interrogatories or show cause why he should not be compelled to respond. (See
Doc. 61).
On August 5, 2011, Dr. Behar filed a brief in response to the court’s show
cause order, and an answer to PennDOT’s interrogatories. In the brief, he argued
that he could not respond to the interrogatories because he could not recall the
names of individuals whom he may have reported to PennDOT, and did not have
records from which he could ascertain those names. (See Doc. 62 at 1-2). But more
fundamentally, Dr. Behar asserted that responding to these interrogatories would
force him to violate the very federal law which he argues preempts PennDOT’s
regulation. He argued that, even if he were in possession of the information
PennDOT requested, he could disclose it only in response to a court order. As will
be discussed in detail infra, federal statutes and regulations prohibit identification
of individuals who participate in federally assisted substance abuse programs,
absent written consent of the participant or the existence of one of three limited
exceptions, none of which are applicable to the facts at hand.
In his answer to PennDOT’s interrogatories, Dr. Behar responded that he
could not recall any names, that he did not have access to the records of any
agencies that may have such information, and that he did not believe that he had
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divulged any names since at least 2002. (Plaintiff’s Answer to Interrogatories, Doc.
63 at 3). In response to an interrogatory requesting the names of all individuals who
were threatened with disclosure of their protected information to PennDOT, Dr.
Behar stated he could not recall any patient names. Id. at 3-4. Dr. Behar also
maintained his objection that disclosing this information would violate federal
regulations. PennDOT claims to have no record of any improper disclosure of a
drug or alcohol treatment program participant, and to have never prosecuted a
health care provider for failing to comply with the reporting requirement. (Dolan
Decl., Doc. 70-1 at 3).
II.

Statutory Background
When evaluating the constitutionality of a law, the “first step . . . is to

construe the challenged statute.” United States v. Williams, 553 U.S. 285, 293
(2008). The challenged regulation is part of a comprehensive scheme enacted by
the Pennsylvania General Assembly and administered by PennDOT which
regulates resident and non-resident drivers in the Commonwealth. PennDOT
operates and oversees a broad range of transportation activities, including
maintenance of highway and bridge infrastructure, aviation, passenger and freight
rail, and public transit services. Of relevance to the instant dispute is PennDOT’s
authority over driver licensing. 75 PA . STAT . ANN . § 1517 establishes a Medical
Advisory Board (“the Board”) charged with advising PennDOT and reviewing
proposed regulations regarding the physical, mental, and visual standards that
should apply to the licensing of drivers. § 1517(b). The board is composed of 13
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members, including representatives from a number of Commonwealth agencies as
well as physicians from the fields of neurology, cardiology, internal medicine,
ophthalmology, optometry, psychiatry, orthopaedics, and general medicine. §
1517(a). The Board is empowered to define those disorders that cause “lapses of
consciousness” or otherwise create a physical or mental impediment to an
individual’s ability to drive, which thereby warrant the mandatory reporting
requirement out of which this lawsuit arises. § 1518(a). Once formulated,
PennDOT may adopt the Board’s physical and mental standards for licensing
drivers. 67 PA . CODE § 83.1.
Pursuant to 75 PA . STAT . ANN . § 1518(b), “[a]ll physicians, podiatrists,
chiropractors, physician assistants, certified registered nurse practitioners, and
other persons authorized to diagnose or treat” disorders or disabilities must report
in writing, within 10 days of diagnosis, the name, date of birth, and address of every
person 15 years of age or older who suffers from one of the disabilities that the
Board has determined may interfere with a person’s ability to drive. These reports
remain confidential with PennDOT, and may only used to determine the patient’s
fitness to drive. § 1518(d). Reporting healthcare providers are immune from civil or
criminal liability under Pennsylvania law for reporting a patient to PennDOT, §
1518(g), but providers who fail to report such individuals commit a summary
offense and may be fined $25.00, § 6502.
Most of the diagnoses subject to the mandatory PennDOT reporting
requirement relate to visual acuity standards, or to ailments that can cause an
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individual to lose consciousness unexpectedly. See, e.g., 67 PA . CODE § 83.3 (visual
acuity standards, including when corrective lenses may be required); § 83.4
(epilepsy); § 83.5(a)(1) (unstable diabetes); § 83.5(a)(2) (hyper- or hypoglycemia).
Healthcare providers are only required to report other disabilities if the provider
believes that the condition affects that particular patient in a way likely to impair
driving ability. These include mental health issues that may impede a driver’s
ability to concentrate on the task at hand, § 83.5(b)(5)(i), or that suggest that a driver
may be at risk to injure himself or others, § 83.5(b)(5)(ii)-(iii). The regulations
further require that healthcare providers report any patient who reports “[u]se of
any drug or substance, including alcohol, known to impair skill or functions,
regardless of whether the drug or substance is medically prescribed” if that use is
likely to impede their ability to drive. § 83.5(b)(7).
In contrast with the Pennsylvania regime, federal statutes and regulations
impose strict restrictions on when and under what circumstances healthcare
providers may disclose identify individuals who participate in federally assisted
drug and alcohol substance abuse treatment programs. This information is
protected in order to ensure that a patient undergoing substance abuse treatment
“is not made more vulnerable by reason of the availability of his or her patient
record than an individual who has an alcohol or drug problem and who does not
seek treatment.” 42 C.F.R. § 2.3(b)(2). Section 290dd-2 and its corresponding
regulations evince Congress’s recognition that confidentiality is a necessary
component of successful substance abuse treatment and that, absent this guarantee
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of confidentiality, individuals who suffer from substance abuse problems may be
reticent to participate in treatment programs. See Whyte v. Conn. Mut. Life Ins.
Co., 818 F.2d 1005, 1010 (1st Cir. 1987) (discussing congressional intent behind the
confidentiality guarantee, previously codified at 42 U.S.C. § 290dd-3).
The restrictions on disclosure apply broadly to any record containing the
“identity, diagnosis, prognosis, or treatment” of any patient who suffers from
substance abuse problems and is “directly or indirectly assisted” by a federal
agency or department. These records must remain confidential, unless the patient
consents to disclosure or the disclosure falls within one of three narrow exceptions.
42 U.S.C. § 290dd-2(a)-(b). The Department of Health and Human Services defines
“patient” as any person “who has applied for or been given diagnosis or treatment”
for a substance abuse problem, whether drug or alcohol-related. 42 C.F.R. § 2.11.
The Department defines “disclosure” as a communication containing any patient
identifying information, that verifies another’s communication of patient identifying
information, or that contains any information from the record of an identified
patient. Id.; see also § 2.12. “Patient identifying information,” in turn, broadly
includes the “name, address, social security number, fingerprints, photograph, or
similar information” that would serve to identify a patient with reasonable accuracy
and speed. Id. § 2.11.
A patient’s substance abuse record may be disclosed to the extent authorized
by prior written consent of the patient, to medical personnel in the event of a bona
fide medical emergency, for research purposes provided that no information
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identifying the patient is included, or by a court order for good cause shown.
§ 290dd-2(b)(2). Any person who makes an improper disclosure of information
protected under the regulations faces a maximum $500 fine for a first offense, and a
maximum $5,000 fine for each subsequent offense. 42 C.F.R. § 2.4.
Each year, PennDOT recalls the licenses of between 10,000 and 12,000
medically unsafe drivers. It does so without the aid of an investigatory branch,
relying instead upon healthcare providers’ self-reporting. PennDOT assumes that
providers are aware of the scope of their reporting obligations, and that they are
aware of the penalties of non-compliance. As noted previously, PennDOT asserts
that it has never prosecuted a provider for failing to report an individual who
participates in a federally assisted drug or alcohol treatment program, and that
“[n]o individual participating in a federally assisted drug or alcohol treatment
program has ever been improperly reported to PennDOT in violation of the Public
Health Service Act.” (See Doc. 69 at 3). Dr. Behar can neither confirm nor deny
these assertions through his own investigation.
III.

Standard of Review
Through summary adjudication the court may dispose of those claims that do

not present a “genuine issue as to any material fact” and for which a jury trial
would be an empty and unnecessary formality. See FED . R. CIV . P. 56(a). The
burden of proof is upon the non-moving party to come forth with “affirmative
evidence, beyond the allegations of the pleadings,” in support of its right to relief.
Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex
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Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a
matter of law, to sustain a judgment in favor of the non-moving party on the claims.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED . R. CIV . P.
56(a). Only if this threshold is met may the cause of action proceed. Pappas, 331 F.
Supp. 2d at 315.
IV.

Discussion
In its Memorandum and Order dated March 31, 2011, the court agreed with

Magistrate Judge Prince that Dr. Behar did not have standing to challenge the
PennDOT regulation in his individual capacity, but he did have third-party
standing as a physician to bring an as-applied preemption claim on behalf of his
patients. (See generally Doc. 52; see also Doc. 37 at 8 (“Plaintiff can meet the
standing requirement as a third-party to challenge the regulation on behalf of his
patients.”)).
PennDOT revisits its standing argument in its motion for summary
judgment. First, it argues that evidence adduced through discovery has vitiated the
court’s earlier ruling that Dr. Behar has standing to bring an as applied preemption
claim, and that in light of this evidence (or, more precisely, lack of evidence) the
remaining claim should be dismissed for lack of standing. (See Doc. 71 at 7).
Alternatively, PennDOT asserts that the regulations as applied to Dr. Behar are not
preempted. (Id. at 12).

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Determining constitutional standing is a necessary predicate to a discussion
of a case’s merits. The judicial power of the United States is limited to “Cases” and
“Controversies,” and “‘Article III standing . . . enforces the Constitution’s case-orcontroversy requirement.’” Hein v. Freedom From Religion Found., Inc., 551 U.S.
587, 597-98 (2007) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)).
“In essence the question of standing is whether the litigant is entitled to have the
court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422
U.S. 490, 498 (1975); see also American Civil Liberties Union of New Jersey v.
Township of Wall, 246 F.3d 258, 261 (3d Cir. 2001) (“ACLU-NJ”) (standing “‘is not
merely a troublesome hurdle to be overcome if possible so as to reach the ‘merits’ of
a lawsuit,’ but an integral part of the governmental charter established by the
Constitution.”) (quoting Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 476 (1982)).
The requirements of Article III standing are “familiar.” Elk Grove Unified
School Dist. v. Newdow, 542 U.S. 1, 11-12 (2004). The plaintiff must show that he or
she suffered an “injury in fact,” that the complained-of conduct is the cause of the
plaintiff’s injury, and that a favorable judgment from the court will redress that
injury. Id.; see also Hein, 551 U.S. at 598 (“A plaintiff must allege personal injury
fairly traceable to the defendant’s allegedly unlawful conduct and likely to be
redressed by the requested relief.”) (internal quotation and citation omitted). More
precisely, the “irreducible constitutional minimum of standing” consists first of an
invasion of a legally protected interest that is (a) concrete and particularized, and
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(b) actual and imminent, rather than conjectural or hypothetical. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-562 (1992) (citing Warth, 422 U.S. at 508;
Sierra Club v. Morton, 405 U.S. 727, 740-41 (1972); and Whitmore v. Arkansas, 495
U.S. 149, 155 (1990)). Second, the “causal connection between the injury and the
conduct complained of” must be “fairly . . . trace[able] to the challenged action of
the defendant, and not . . . th[e] result [of] the independent action of some third
party not before the court.” Id. at 560 (alterations in original) (internal quotations
omitted). Third, it must be “likely” that the injury will be “redressed by a favorable
decision.” Id. at 560-61. “At bottom, ‘the gist of the question of standing’ is whether
petitioners have ‘such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination.’” Massachusetts v. EPA, 549
U.S. 497, 517 (2007) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). Dr. Behar
carries the burden of establishing the elements of standing, and he must meet that
burden “‘in the same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence required at successive
stages of the litigation.’” ACLU-NJ, 246 F.3d at 261 (quoting Lujan, 504 U.S. at 561).
The principal standing dispute between the parties is whether an actual
injury exists. The gravamen of defendants’ argument is that PennDOT has never
prosecuted a healthcare provider for failing to report any individual participating in
a federally assisted treatment program, and therefore that any alleged injury on the
part of Dr. Behar (for fear of prosecution) or of his patients (for fear of having their
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confidential information disclosed in violation of federal law) is not sufficiently
imminent or credible to satisfy Article III. (See Doc. 71 at 11). PennDOT asserts
that it does not require health care providers to identify individuals who are
encompassed by the Public Health Services Act’s nondisclosure provisions, and has
never forced a physician to choose whether to comply with federal law or with state
law. (Id.) Further, PennDOT argues that there is no evidence that any patient has
ever had confidential information improperly disclosed to PennDOT. (Id.)
An injury must be imminent or impending, rather than speculative, to satisfy
Article III. See Reilly v. Ceridian Corp., 664 F.3d 38, 42 (3d Cir. 2011) (discussing
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)); see also O’Shea v. Littleton, 414
U.S. 488, 494 (1974) (“Abstract injury is not enough. It must be alleged that the
plaintiff ‘has sustained or is immediately in danger of sustaining some direct injury’
as the result of the challenged statute or official conduct.” (quoting Massachusetts
v. mellon, 262 U.S. 447, 488 (1923)). The threat must “proceed with a high degree of
immediacy, so as to reduce the possibility of deciding a case in which no injury
would have occurred at all,” id. (quoting Lujan, 504 U.S. at 564 n.2), and must not be
“conjectural” or “hypothetical.” Id.; see also id. at 43 (“Appellants in this case have
yet to suffer any harm, and their alleged increased risk of future injury is nothing
more than speculation. As such, the alleged injury is not ‘certainly impending.’”).

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In the instant matter, the record is devoid of evidence that any health care
professional has ever violated the federal nondisclosure regulations. Indeed,
discovery has closed and Dr. Behar has failed to identify even a single instance in
which he or any other health care professional disclosed to PennDOT the identity of
a patient undergoing treatment in a federally funded drug or alcohol treatment
program. Presumably, if this had occurred, Dr. Behar would have easily learned of
it through discovery, but he has not produced any such evidence in support of his
motion for summary judgment.
Nor is there any evidence that PennDOT has prosecuted a single doctor for
failure to comply with the reporting statute. Indeed, PennDOT represents that it
does not enforce state law in such a way as to force healthcare providers to violate
either state or federal law. (See Dolan Decl., Doc. 70-1 at 2 (“The Department does
not require health care providers to disclose the names of individuals protected by
the Public Health Service Act . . . .”)). Dr. Behar states that, over the years, some
patients have expressed concern that their confidential information may be
disclosed to PennDOT, and that he was unable to guarantee confidentiality. (See
Behar Decl., Doc. 73-1 at 3). But absent any evidence or history of improper
disclosures, the preemptive concern of a patient that their confidential information
would be improperly disclosed to PennDOT lies wholly in speculation and
conjecture.
Dr. Behar sufficiently plead an injury-in-fact, for purposes of a motion to
dismiss, when he alleged that his patients may not be fully truthful with him if they
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were aware that their confidential information could be disclosed to PennDOT.
However, at summary judgment, mere allegations are not sufficient: the plaintiff
carries the burden to establish standing by the manner and degree of proof
commensurate with each “successive stage[] of the litigation.” ACLU-NJ, 246 F.3d
at 261 (quoting Lujan, 504 U.S. at 561); see also Gonzales v. North Township of Lake
county, 4 F.3d 1412, 1415 (7th Cir. 1993) (“At the summary judgment stage, the
plaintiff must produce evidence in the form of FED . R. CIV . P. 56(e) affidavits or
documents that support the injury allegation.”). In failing to present evidence that
patients have experienced or imminently will experience an actual injury, Dr.
Behar has failed to establish that he has standing to sue, and his claim must
therefore be dismissed.
V.

Conclusion
For the reasons previously discussed, Dr. Behar’s motion for summary

judgment will be denied, and PennDOT’s motion for summary judgment will be
granted. An appropriate order will issue.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
Dated:

February 5, 2013

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAVID BEHAR, M.D.,
Plaintiff,
v.
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION, and
ALLEN BIEHLER,
Defendants

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Civil Action No. 1-09-CV-02453
(Judge Conner)

ORDER
AND NOW, this 5th day of February, 2013, upon consideration of the crossmotions for summary judgment filed by defendants Allen D. Biehler and the
Pennsylvania Department of Transportation (Doc. 68) and plaintiff David Behar
(Doc. 72), and for the reasons discussed in the accompanying Memorandum, it is
hereby ORDERED that:
1.

Defendants’ motion for summary judgment (Doc. 68) is GRANTED.

2.

Plaintiff David Behar’s motion for summary judgment (Doc. 72) is
DENIED.

3.

The Clerk of Court is directed to CLOSE the case.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge