403 F.Supp. 931 (S.D.N.Y. 1975), 73 Civ. 1303, Roe v. Ingraham

Docket Nº:73 Civ. 1303, 73 Civ. 1431.
Citation:403 F.Supp. 931
Party Name:Richard ROE, an infant by Robert Roe, his parent, et al., Plaintiffs, v. Hollis S. INGRAHAM, as Commissioner of the State of Neu York HealthDepartment, defendant, George Patient et al., Intervenors.
Case Date:August 13, 1975
Court:United States District Courts, 2nd Circuit, Southern District of New York
 
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Page 931

403 F.Supp. 931 (S.D.N.Y. 1975)

Richard ROE, an infant by Robert Roe, his parent, et al., Plaintiffs,

v.

Hollis S. INGRAHAM, as Commissioner of the State of Neu York HealthDepartment, defendant, George Patient et al., Intervenors.

Nos. 73 Civ. 1303, 73 Civ. 1431.

United States District Court, S.D. New York.

Aug. 13, 1975

Probable Jurisdiction Noted Feb. 23, 1976.

Page 932

Shea, Gould, Climenko & Kramer, New York City, by Michael Lesch, Barry L. Mendelson, New York City, for plaintiffs in 73 Civ. 1303.

Solomon Z. Ferziger, David P. Steinman, New York City, for plaintiffs.

Norwick Raggio & Jaffe, New York City, by H. Miles Jaffe, New York City, Legal Action Center of the City of New York, Inc., New York City, by Elizabeth B. DuBois, Eric D. Balber, Margaret K. Brooks, Risa G. Dickstein, New York City, co-counsel for plaintiff Patient in 73 Civ. 1431.

Louis J. Lefkowitz, Atty. Gen of New York, New York City, by Michael Fogarty, Seth Greenwald, Asst. Atty. Gen., New York City, for defendant.

Before FEINBERG, Circuit Judge, and WYATT and CARTER, District Judges.

OPINION

ROBERT L. CARTER, District Judge.

Status of Proceedings

This challenge to the constitutional validity of the New York Public Health Law, McKinney's Consol. Laws, c. 45, Sec. 3300 et seq., pursuant to which under Secs. 3331(6), 3332, subd. 2(a) and 3334 (4) all prescriptions containing Schedule II substances must be filed with the Bureau of Controlled Substances, Licensing and Evaluation (BCSLE) in Albany on forms supplied by the state is before us on the merits. Plaintiffs seek to enjoin permanently so much of the statutory provisions under attack as require that the names of recipients of Schedule II drugs presceibed by licensed physicians as medications be filed with the state for computerization.

Since the history of the litigation has been set out in our prior opinion, reported at 364 F.Supp. 536, where we denied plaintiffs' motion for a preliminary injunction and defendant's motion to dismiss, we will advert only briefly to the background facts. In 1970 a Temporary New York State Commission to Evaluate the Drugs Laws was created. Its function was to recommend whatever modifications in the law were deemed necessary to meet existing problems in respect of drug abuse. In the Commission's Interim Report drugs were grouped into five schedules. Schedule II drugs (which are the concern of this litigation) recognizably have legitimate and worthwhile uses in the treatment of illnesses and disorders. (Id. at P. 13). Among the Schedule II drugs in this

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category are, e.g., ritalin, codeine, percodan, morphine and hycodan. These drugs are useful in ameliorating pain, in the treatment of epilepsy, narcolepsy, hyperkinesia, schizoaffective disorders, and migraine headaches, but they also have a high potential for abuse. The legislation before us seeks to prohibit Schedule II legitimate drug medications from being diverted to illegal uses by governmental oversight of the prescription, distribution and use of these drugs.

In our prior opinion we said that '(p)laintiffs' claims . . . raise novel and serious questions with potentially far-reaching consequences as to the permissible reach of the protection afforded by the right of privacy as an independent constitutional guarantee,' 364 F.Supp.at 544, and in refusing to dismiss the action we stated that 'plaintiffs must be afforded the opportunity to demonstrate that the computerization of names is not necessary for the accomplishment of the state's goals, that the controls developed by the state are inadequate to protect against unauthorized disclosure of the computerized information and that the injury to the plaintiffs resulting from the implementation of this system of centralized filing is sufficiently serious to overcome any competing state interest.' Id. at 546-547.

Findings of Fact

The evidentiary facts relevant to decision on the merits were presented to us in four forms (1) by stipulated facts, (2) depositions taken on December 4 and 6, 1974, (3) exhibits, and (4) live testimony before the court on December 2, 1974. What follows are our findings of fact.

Special prescription forms are required for all Schedule II drugs, and such forms are sent to all qualified physicians who order them. The forms are serially numbered. A letter from the Commissioner of Health instructs physicians on how to secure and obtain the forms, and lists some of the Schedule II drugs and their trade names. A physician dispensing a Schedule II drug is required to keep one copy of the prescription and to mail the original and other copy to the BCSLE in Albany. When the physician prescribes but does not dispense the drug himself, he is again required to keep one copy of the form, but gives the original and remaining copy to the patient, who takes them to a pharmacist in order to have the prescription filled. The pharmacist keeps the original and sends the copy to the BCSLE. The prescription form contains the name, address, telephone number and DEA 1 (Drug Enforcement Administration) number of the prescribing physician, the date the prescription was issued, the name, age and address of the patient, the name and amount of the drug prescribed, maximum daily dosage, the signature of the physician, the prescription number issued by the pharmacy, the date the prescription was filled, the NDC (National Drug Code) number of the drug, the DEA number of the pharmacy, and the signature of the dispenser.

The prescription forms are received in the mail room of BCSLE in Albany. Since April 1, 1973, the effective date of the Act, BCSLE has been receiving approximately 100,000 prescription forms per month. The forms are taken unopened to a receiving room where they are opened, coded, put into batches of 100 each and logged. These tasks are performed by approximately nine clerks. The batches are then taken into a 'processing room' which is a part of the Office of Electronic Data Processing (OEDP). There the information on the forms is key punched onto a recorder disc and after the disc is filled, the information is put on magnetic tapes, and the disc is erased. The magnetic tapes...

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