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February 14, 1983

The STATE OF NEW YORK and The New York State Department of Health, Plaintiffs,
Richard S. SCHWEIKER, Secretary of the U.S. Department of Health and Human Services, Defendant; MEDICAL AND HEALTH RESEARCH ASSOCIATION OF NEW YORK CITY, INC., Individually and on Behalf of its service divisions MATERNITY, INFANT CARE-FAMILY PLANNING PROJECTS and Project For Rockaway's Youth in Medical Essentials, and all others similarly situated, Dr. Donna O'Hare, and Dr. Harvey Simon, Individually and on behalf of all others similarly situated, Plaintiffs, v. Richard SCHWEIKER, or his successor, Secretary of the Department of Health and Human Services, Defendant

The opinion of the court was delivered by: WERKER

These actions challenge the legality of regulations recently issued by the Secretary ("Secretary") of the Department of Health and Human Services ("HHS") that (1) require family planning services that receive federal funds pursuant to Title X of the Public Health Service Act, 42 U.S.C. §§ 300-300a-6a, to notify the parent or guardian of an unemancipated minor that prescription contraceptive drugs or devices have been provided to the minor and (2) revoke the prior authority given to Title X grantees to disregard family income when determining the fees to be charged to unemancipated minors who desire treatment on a confidential basis. 49 Fed.Reg. 3614. Plaintiffs moved by order to show cause on January 26, 1983 for a preliminary injunction enjoining the Secretary from enforcing the regulations, which are scheduled to go into effect on February 25, 1983. For the reasons that follow, the motions are granted. *fn1"


 In 1970, Congress added Title X to the Public Health Service Act, Pub.L. No. 91-572, 84 Stat. 1504 (1970), which established a system of federally funding public and nonprofit private family planning projects. Congress' purpose in enacting Title X was to provide federal assistance in making family planning services available to all people. Id. at § 2(1), 84 Stat. 1504. Over the years, Congress consistently expressed concern with the difficulties of reaching adolescents who were in need of family planning services. E.g., H.R.Rep. No. 1161, 93rd Cong., 2d Sess. 14 (1974); S. Rep. No. 29, 94th Cong., 1st Sess. 55 (1975), U.S.Code Cong. & Admin.News 1975, p. 469; H.R.Rep.No. 192, 94th Cong., 1st Sess. 27 (1975). In 1978, Congress declared that "the problems of teenage pregnancy have become critical," H.R.Rep.No. 1191, 95th Cong., 2d Sess. 31 (1978), and therefore amended Title X to include a specific mandate that Title X grantees must provide services to adolescents. Pub.L. No. 95-613 § 1(a)(1), 92 Stat. 3093 (1978). See id. & S.Rep.No. 822, 95th Cong., 2d Sess. 24, 27-30 (1978) for a discussion of the harmful and costly health and social effects of teenage pregnancy.

 In 1981, effecting "no substantial chang[e] in the existing law," H.R.Rep. No. 158, 97th Cong., 1st Sess. 73 (1981), Congress again amended Title X to read as follows:

To the extent practical, entities which receive grants or contracts under [Title X] shall encourage family participation in projects assisted under [Title X].

 42 U.S.C. § 300(a). The Joint Explanatory Statement of the Committee of Conference on the 1981 amendment states:

The conferees believe that, while family involvement is not mandated, it is important that families participate in the activities authorized by this title as much as possible. It is the intent of the Conferees that grantees will encourage participants in Title X programs to include their families in counseling and involve them in decisions about services.

 H.R.Rep. No. 208, 97th Cong., 1st Sess. 799 (1981), U.S.Code Cong. & Admin.News 1981, pp. 396, 1161. It was pursuant to this amendment that the Secretary issued the regulations challenged here.

 The Regulations

 Under the new regulations, when Title X grantees initially provide prescription drugs or devices to an unemancipated minor, they must notify a parent or guardian of the minor within ten working days. 49 Fed. Reg. 3614 § 59.5[a][12][i][A] (1983). Prior to servicing the minor, the grantee must inform the minor that such notice will be given. Id. The regulations further require the grantee to verify receipt of the notice by "certified mail [with restricted delivery and return receipt requested], or other similar forms of documentation." Id. If the grantee is unable to verify receipt of the notice, it is prohibited from providing the minor with any additional prescription drugs or devices. Id. Notification need not be given when the grantee determines that it would result in physical harm to the minor by a parent or guardian, id. at § 59.5[a][12][i][B], or when prescription drugs are provided for the treatment of sexually transmitted diseases. Id. at § 59.5[a][12][i][E]. The grantee must keep records on the notices sent and the verifications received and on the number of and factual basis for determinations not to give notice because of potential physical abuse. Id. at § 59.5[a][12][i][D]. These records must be made available to the Secretary upon request. Id. The regulations also delete the provision currently contained in 42 C.F.R. § 59.2, which states that "unemancipated minors who wish to receive services on a confidential basis must be considered on the basis of their own resources." 48 Fed.Reg. 3614 at § 59.2 (1983).

 The Parties

 The first action has been commenced by the State of New York ("State") and its department of health ("NYSDH"). These plaintiffs allege that the State has been awarded $8 million in Title X funds for the 1982-1983 fiscal year and that approximately $4.5 million of those funds will be distributed by NYSDH to various delegate agencies that provide family planning services. The second action has been brought as a class action by the Medical and Health Research Association of New York City, Inc. ("MHRA"), a private nonprofit corporation that was formed to assist in the development of health facilities in the City of New York, and two physicians. MHRA states that it has been awarded $2.1 million in Title X funds for the 1982-1983 fiscal year. According to MHRA, $754,149 of those funds will be distributed to MHRA's service divisions -- the Maternity Infant-Care Family Planning Projects ("MIC/FPP") and the Project for Far Rockaway's Youth in Medical Essentials ("PRYME"). MHRA sues on behalf of MIC/FPP, PRYME and all other similarly situated family planning services in New York. The physician plaintiffs are Dr. Donna O'Hare, who is in charge of planning and implementing Title X-funded services at MIC/FPP, and Dr. Harvey Simon, who performs a similar function at PRYME. They sue on behalf of all similarly situated physicians and on behalf of their adolescent patients.

 Plaintiffs claim that the Secretary's regulations will prevent adolescents who want confidentiality and/or to be charged on the basis of their own resources from making use of Title X clinics. They argue that the effect of the regulations will be to reverse the progress that has been made in the State in reaching adolescents who need family planning services and in decreasing the number of unwanted teenage pregnancies. According to plaintiffs, the regulations will defeat one of the main purposes of Congress in enacting Title X, that is, to make family planning services available to adolescents in order to stem the tide of ...

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