Appeal from a summary judgment entered in the United States District Court for the Eastern District of New York, Raymond J. Dearie, Judge, dismissing plaintiff-appellant's claim that federal regulations preempt a New York State regulation governing methadone take-home privileges for patients in New York methadone treatment programs. Plaintiff-appellant contends that the New York regulation impermissibly imposes a more stringent standard with respect to employment for patient eligibility than its federal counterpart. Affirmed.
Oakes, Chief Judge, and Mahoney, Circuit Judges, and Kimba M. Wood, District Judge.*fn*
Plaintiff-appellant Salvatore Luna appeals from a summary judgment entered in the United States District Court for the Eastern District of New York, Raymond J. Dearie, Judge, dismissing Luna's challenge to a New York State regulation governing methadone take-home privileges for patients in methadone treatment programs. Luna contends that the pertinent New York regulation posits more stringent requirements with respect to employment than its federal counterpart, which assertedly preempts the state requirement.
In an opinion reported at 666 F. Supp. 33 (E.D.N.Y. 1987), the district court rejected this contention, and granted summary judgment to defendants-appellees. We agree, and accordingly affirm.
Plaintiff-appellant Salvatore Luna is a patient in the Suffolk County Methadone Treatment Program (the "Program"), which affords a broad array of treatments, including methadone detoxification. Luna initiated this action with a class action pro se complaint seeking monetary and injunctive relief from various employees of the Suffolk County Department of Health Services for alleged illegal practices by those employees in the conduct of the Program.
Negotiations between the parties resulted in a stipulation, approved by the district court, which resolved many of the issues in this litigation. The stipulation specified that "[this] is not a class-action lawsuit and the only plaintiff is SALVATORE LUNA." Only the issue of federal preemption is presented on this appeal.
The preemption claim involves N.Y.Comp.Codes R. & Regs. tit. 14, § 1040.11 (1984) and 21 C.F.R. § 291.505 (d)(8)(iv) and (v) (1988), which deal with take-home requirements for patients undergoing methadone treatment. These regulations provide various "stages" of take-home eligibility. Luna's contention is that the state regulation is more stringent and less permissive than its federal counterpart, and that this is impermissible because of federal preemption.
Section 1040.11, the New York regulation, establishes the various stages for take-home eligibility in the following terms under the heading "[length] of treatment":
(i) If the patient has been admitted for less than three months (including the stabilization period), daily clinic visits are required unless the program is only open six days a week, in which case one daily take-home dose may be issued weekly.
(ii) If the patient has been admitted more than three months but less than two years, no less than three clinic visits weekly are required. No more than two take-home doses may be issued at any time, and no more than a total of four take-home doses in any week.
(iii) If the patient has been admitted for at least two years but less than three years, no less than two clinic visits per week are required. No more than three take-home doses may be issued at any time, and no ...