HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/AXELROD.ASC

Text File | 1993-01-14 | 16KB | 300 lines

/* In this case doctors sought that the state of New York
designate HIV as a sexually transmitted disease, which as the
opinion illustrates would have many severe consequences such as
mandatory reporting of contacts, etc. The Court finds that the
state was not required to do so. Reported in 55 N.Y.S. 2d
911(A.D. 3 Dept. 1990)*/

In the Matter of NEW YORK STATE SOCIETY OF SURGEONS et al.,
Appellants,

v.

David M. AXELROD, as Commissioner of Health of the State of New
York, et al., Respondents.

Supreme Court, Appellate Division, Third Department.

May 3, 1990.



HARVEY, Justice.

In February 1988 petitioners, four medical societies, requested
that respondents, the Commissioner of Health and the Public
Health Council, designate an infection with human
immunodeficiency virus (hereinafter HIV infection) as a
communicable disease and a sexually transmissible disease
[footnote 1] pursuant to Public Health Law  225(5)(h) and  2311.
To do so would trigger the operation of statutes providing for
isolation and quarantine, reporting, testing and contact testing
for those diseases added to the list. Petitioners' main concern
is with the provisions relating to mandatory testing and contact
tracing since they concede that isolation and quarantine would be
inappropriate for AIDS or HIV-infected patients. Respondents'
decision denying petitioners request was in a letter which
stressed, among other things, the importance of the voluntary
cooperation of affected individuals and the fear that "a level of
confidentiality might also be lost" if such designations were
made.  Petitioners thereafter commenced this CPLR article 78
proceeding, principally alleging that respondents' action in
refusing to make the requested designation was in excess of their
authority and seeking to compel respondents to add HIV infection
to the lists. [footnote 2] Supreme Court dismissed the petition
on the merits and this appeal by petitioners followed.

[1]  Initially, we reject respondents' contention that
petitioners lacked standing to challenge respondents' action in
failing to designate HIV infection a communicable or sexually
transmissible disease.  They contend that petitioners have failed
to demonstrate that they are adversely affected by respondents'
determination. Petitioners allege that respondents' failure to
designate HIV infection a communicable or sexually transmissible
disease has interfered with their ability to perform their
ethical responsibilities to improve the public health, interferes
with their ability to provide quality treatment to their
patients, and interferes with their ability to adequately protect
themselves from disease.  The petitioning party must have a
legally cognizable interest that is or will be affected by the
determination (see, Matter of Har Enters. v. Town of Brookhaven
74 N.Y.2d 524, 527-528, 549 N.Y.S.2d 638, 548 N.E.2d 1289). The
Court of Appeals has stated that "[t]he increasing pervasiveness
of administrative influence on daily life... necessitates a
concomitant broadening of the category of persons entitled to a
judicial determination" of administrative actions (Matter of
Dairylea Coop. v. Walkley, 38 N.Y.2d 6, 10. 377 N.Y.S.2d 451, 339
N.E.2d 865). Supreme Court properly concluded that the
allegations in the petition are sufficient to establish that
petitioners and their members are adversely affected and within
the zone of interest to be protected by Public Health Law
225(5)(h) and  2311.

[2]  Turning to the merits, it is our view that respondents did
not exceed their authority or act arbitrarily or capriciously
when they determined that HIV infection would not be designated
as a communicable or sexually transmissible disease.  Our scope
of review in a CPLR article 78 proceeding is limited to
determining whether the challenged action represents a reasonable
exercise of the agency's authority (see, Matter of Society of New
York Hosp. v. Axelrod, 70 N.Y.2d 467, 473, 522 N.Y.S.2d 493, 517
N.E.2d 208; Matter of Sigety v. Ingraham, 29 N.Y.2d 110, 114, 324
N.Y. S.2d 10, 272 N.E.2d 524).  A determination must generally be
sustained when it is not arbitrary and capricious or in violation
of statutory law (see, Matter of Severino v. Ingraham, 44 N.Y.2d
763, 764, 406 N.Y. S.2d 28, 377 N.E.2d 472).

While petitioners contend that Public Health Law  225(5)(h) and
2311 set mandatory standards for the designation of a disease as
communicable or sexually transmissible, it is apparent that the
Legislature has left such designations to respondents'
discretion. Public Health Law  225(4) gives to the Public Health
Council the authority to establish the State's sanitary code
subject to the approval of the Commissioner of Health.  Public
Health Law  225(5)(h) provides that "[t]he sanitary code may * *
* designate the communicable diseases which are dangerous to the
public health" (emphasis supplied).  The Legislature's use of the
permissive word "may" is clear evidence that a designation of a
disease as communicable is left to the discretion of respondents.

With respect to the HIV infection's possible status as a sexually
transmissible disease, petitioners argue that because the
infection is principally transmitted by sexual contact [footnote
3] and has an impact on individual morbidity and the health of
newborns, respondents must include it on the list of sexually
transmissible diseases. We do not agree. Public Health Law  2311
provides that:

The commissioner shall promulgate a list of sexually
transmissible diseases, such as gonorrhea and syphilis, for the
purposes of this article.  The commissioner, in determining the
diseases to be included in such list, shall consider those
conditions principally transmitted by sexual contact and the
impact of particular diseases on individual morbidity and the
health of newborns.

Although the statutory language clearly mandates that certain
actions be taken by the Commissioner, such as the promulgation of
a list, it is apparent that the determination of the diseases to
be so designated remains within the discretion of the
commissioner.  Notably absent from the statutory language is a
requirement that the list include each disease that the
Commissioner determines to be characterized by the listed factors
(see, e.g., Natural Resources Defense Council v. Train. (S.D.
N.Y.), 411 F.Supp. 864, 867, aff'd. (2nd Cir.) 545 F.2d 320).

Finally, our review of the record convinces us that respondents'
determination is rationally based and cannot be annulled on the
ground that it is arbitrary or capricious (see, Matter of
Lewiston-Porter Cent. School Dist. v. Sobol, 154 A.D.2d 777, 546
N.Y.S.2d 227; Matter of Whol v. Ambach, 105 A.D.2d 999, 1001, 482
N.Y.S.2d 129, affd. 66 N.Y.2d 818, 498 N.Y.S.2d 363, 489 N.E.2d
250). The thrust of petitioners' argument is that the reporting
requirements contained in the statutes are crucial in controlling
the spread of HIV infection.  Respondents point out, however,
that the reporting requirements would be redundant because New
York State and New York City health officials already have access
to all the AIDS information required to be reported under the
statutes and to almost all HIV confirmation test results.

Regarding mandatory testing and contact tracing, respondents
persuasively argue that these methods are not effective in
dealing with HIV infection because of the unique nature of the
condition. HIV infection leading to AIDS is one of the few
diseases which is both fatal and incurable. The potential for
discrimination against those who may be infected is much greater
than for other diseases.  Infected persons may remain
asymptomatic for many years and HIV antibody test results may be
inaccurate because antibodies to HIV may not be, produced for up
to 14 months after exposure.

As a result of these and other factors, the Commissioner has
actively promoted the voluntary cooperation of individuals who
are at risk of contracting HIV infection. Support for this
approach is found in the  Legislature's  enactment  of Public
Health Law article 27-F, which sets forth in detail a plan to
promote voluntary testing and delineates the parameters within
which contact tracing will be allowed. Contrary to the provisions
for mandatory testing in connection with sexually transmissible
and communicable diseases (see, Public Health Law 2300; 10 NYCRR
2.6[b]), article 27-F requires obtaining written informed consent
from the individual to be tested prior to the performance of any
HIV-related test (see, Public Health Law  2781[1]).  Further,
that article provides that a person authorized by law to order
the tests shall provide to the individual to be tested an
"opportunity to remain anonymous and to provide written, informed
consent through use of a coded system with no linking of
individual identity to the test request or results" (Public
Health Law  2781[4]).  In contrast, neither Public Health Law
225 nor the attendant regulations relating to the designation of
communicable diseases requires the confidentiality of test
results. In addition, the confidentiality afforded to sexually
transmissible disease reports is limited (see, Public Health Law
2306).

In sum, it is respondents' position that the voluntary
cooperation of high-risk individuals will be acquired by existing
programs and by the elimination of the fear that coercive
measures will be taken.  In their view, such cooperation would be
chilled by the threat of mandatory testing despite assurances of
confidentiality. Support for this position is provided in the
United States Centers for Disease Control guidelines.  Since
there is a rational basis for respondents' assertions that
nothing positive would be gained by the designation of HIV
infection as a communicable or sexually transmissible disease and
that the concerns voiced by petitioners are adequately addressed
by existing legislation, we affirm the dismissal of the petition



KANE, Justice Presiding (dissenting).

We respectfully dissent.  We do agree with the majority that the
Public Health Law calls for the designation of a disease as
communicable or sexually transmissible at the discretion of the
Commissioner of Health (see, Public Health Law  225[5][h];
2311).  In our view, however, the Commissioner's exercise of his
discretion in refusing to designate AIDS a communicable disease
is, in this instance, arbitrary, capricious and in contravention
of both the record before us and the intent behind the relevant
statutory law.

It is respondents' position that mandatory testing and contact
tracing would prevent individuals with HIV infection from
voluntarily cooperating with public health officials in
curtailing AIDS. However true this may be, when contrasted with
the current, dangerously critical level the epidemic has
achieved, respondents' position fails to "take cognizance of the
interests of health and life of the people of the state" (Public
Health Law  206[1][a]). Appropriate recognition of this "public
health concern of the highest order" (Ware v. Valley Stream High
School Dist., 75 N.Y.2d 114,128, 551 N.Y.S.2d 167, 550 N.E.2d
420) would reveal what the Commissioner of Education took note of
in denying an exemption from AIDS instruction to school children
of a certain religious faith.

"[T]he AIDS crisis has reached epidemic proportions.  Never in
modern history has society been confronted with an infectious
disease of greater magnitude. According to the State of New
York's 1989 inter-agency AIDS planning document, an estimated
90,500 New Yorkers will have been diagnosed with the AIDS virus
by 1994.  [T]his human devastation will be accompanied by
economic and political changes which will affect our social
institutions, our educational practices and our health care
systems" (Ware v. Valley Stream High School Dist.. 150 A.D.2d 14,
20, 545 N.Y.S.2d 316, mod. 75 N.Y.2d 114, 551 N.Y.S.2d 167, 550
N.E.2d 420).

A report contained in the record and issued by the Institute of
Medicine, National Academy of Sciences states that "[b]y the end
of 1991 there will have been a cumulative total of more than
270,000 cases of AIDS in the United States" and that although
AIDS cases will continue to involve recognized high-risk groups
"[n]ew AIDS cases in men and women acquired through heterosexual
contact will increase from 1,100 in 1986 to almost 7,000 in
1991". Even more alarmingly, the report states that "[p]ediatric
AIDS cases will increase almost 10-fold in the next five years,
to more than 3,000 cumulative cases by the end of 1991"
(Confronting AIDS:  Directions for Public Health, Health Care and
Research, at 8 [National Academy Press 1986]).

In our view, these factors far outweigh respondents' concern, as
stated by the majority, that "cooperation would be chilled by the
threat of mandatory testing despite assurances of
confidentiality".  "The ability of public health departments to
identify persons exposed to  HIV expeditiously through testing,
reporting and partner notification can be critical to effective
therapeutic intervention" (Gostin, The AIDS Litigation Project,
JAMA, Apr. 11,1990, at 1962). For communicable diseases, testing,
reporting and notification are provided for in our Public Health
Law. AIDS and HIV infection are communicable diseases (see,
Matter of Doe v. Coughlin, 71 N.Y.2d 48, 60, 523 N.Y.S.2d 782,
518 N.E.2d 536, cert. denied 488 U.S. 879, 109 S.Ct. 196, 102
L.Ed.2d 166; Matter of Health ins. Assn. of Am. v. Corcoran, 140
Misc.2d 255, 260, 531 N.Y.S.2d 456, mod. on other grounds 154
A.D.2d 61, 551 N.Y.S.2d 615; Merritt, Communicable Disease and
Constitutional Law: Controlling AIDS, 61 NYU L Rev 739 [1986]),
the transmission and spread of which the State has a substantial
interest in preventing (see, Matter of Doe v. Coughlin, supra, 71
N.Y.2d at 57, 523 N.Y.S.2d 782, 518 N.E.2d 536). Although the
designation of HIV infection or AIDS as a communicable disease is
a discretionary function of the Commissioner of Health, his
refusal to so designate in view of clearly skyrocketing health
concerns is arbitrary and capricious and further sidesteps an im
portant concern voiced by petitioners, i.e., the physician's
right and responsibility to know if their patients are infected
and to proceed accordingly.  We would therefore reverse Supreme
Court's judgment and grant so much of the petition as seeks to
require the Commissioner to designate AIDS as a communicable
disease.

Judgment affirmed, without costs.

WEISS and YESAWICH, JJ., concur.

KANE, J.P., and MIKOLL, J., dissent and vote to reverse in an
opinion by KANE, J.P.



FOOTNOTES:

1.   An individual with HIV infection may develop acquired immune
deficiency syndrome (hereinafter AIDS). There is presently no
cure for HIV infection or AIDS: However, an individual with HIV
infection may not develop any signs of the infection and may not
develop AIDS.

2.   By permission of Supreme Court, various individual
physicians and associations, including the Public Health
Association, filed an amicus brief and affidavits in opposition
to the petition.

3.   This assertion is disputed since respondents assert that HIV
infection is no longer principally transmitted by sexual contact
in this State; rather, statistics allegedly show that the
infection is now principally transmitted by intravenous drug use.