§ 16.96. Plaintiff seeks declaratory and injunctive relief. On October 20, 1987 the Pennsylvania Osteopathic Medical Association ("POMA") filed an action against the eight individual members who comprise the State Board of Osteopathic Medicine. This plaintiff challenges the constitutionality of certain regulations promulgated by the Board of Osteopathic Medicine also regarding the "prescribing, administering and dispensing [of] controlled sympathomimetic amines." 49 Pa.Code § 25.211. Plaintiff seeks declaratory and injunctive relief. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3). Because the pertinent contents of the challenged regulations are identical in both actions, on October 20, 1987 this court ordered the actions consolidated.
Plaintiffs moved for a preliminary injunction seeking to enjoin enforcement of those portions of the challenged regulations which set durational limitations on the use of sympathomimetic amines and on the sections of the regulations which require waivers for the use of sympathomimetic amines. A hearing was held on November 3, 1987, deposition transcripts were filed, and the parties fully briefed the motion.
On October 14, 1987 the Pennsylvania Medical Society filed suit against the Commonwealth's State Board of Medicine in the Commonwealth Court of Pennsylvania, challenging the same regulations challenged in federal court. As in the case before this court, POMA filed a practically identical complaint in state court, and the actions were consolidated. Plaintiffs challenged the regulations on purely state law grounds. A hearing in state court was held on a motion for a preliminary injunction, and on November 18, 1987 that motion was denied.
The regulations at issue are an attempt by the State to reduce the incidence of amphetamine drug abuse throughout the Commonwealth. Defendants' Brief in Opposition at 9. These "sympathomimetic amines are a class of medications with certain common chemical and pharmacological characteristics. Some sympathomimetic amines are designated as 'Controlled Substances' under Schedule II-IV of the Controlled Substance, Drug, Device, and Cosmetic Act, 35 P.S. § 780-101 et seq." POMA's Complaint at paras. 14, 15. The regulations contain patient record access and reporting requirements, limitations on the prescription and dispensation of sympathomimetic amines for weight control purposes, and procedures to be followed to obtain a waiver from the Boards for prescribing or administering sympathomimetic amines beyond a forty-five day period in a twelve month period in certain circumstances. POMA's Complaint at Exhibit A; Board of Medicine's Complaint at Exhibit A.
Plaintiffs challenge the waiver provisions alleging, inter alia, the regulations "impose unnecessary burdens on physicians, and will deter some patients from receiving and seeking appropriate medical treatment, all without commensurate benefits to the public." POMA's Complaint at para. 22. They claim these provisions are violative of the Constitution of the United States:
The regulations challenged herein violate the privacy right to independence in decision-making guaranteed under the Constitution of the United States in that the defendants, not licensed medical doctors chosen by a patient, will be making treatment decisions for that patient.