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

Text File | 1993-01-14 | 62KB | 1,143 lines

/*  This case is reported in 502 N.Y.S.2d 325 (Sup. 1986).  This
is a lengthy discussion of the law related to students who are
HIV positive attending school. Note that later administrative
regulations may in part supersede the analysis in this case. */

Application of DISTRICT 27 COMMUNITY SCHOOL BOARD, by its
President, Samuel GRANIRER; District 29 Community School Board;
Samuel Granirer, as Parent and Natural Guardian of Louis and
Pamela Granirer; and Samuel Granirer, Individually, Petitioners,

For a Judgment Pursuant to Article 78 of the CPLR

v.

The BOARD OF EDUCATION OF the CITY OF NEW YORK, Nathan Quinones,
as Chancellor of the Board of Education of the City of New York,
James F. Regan, as President of the New York City Board of
Education, The Department of Health of the City of New York,
David J. Sencer, as Commissioner of Health, and the City of New
York, Respondents.

Supreme Court, Queens County.

Feb. 11,1986.



HAROLD HYMAN, Justice.

The case definition of AIDS promulgated by the CDC for national
reporting continues to include only the more severe
manifestations of HTLV-III/LAV infection. CDC defines a case of
AIDS for epidemiologic purposes as a syndrome in which a person
has a reliably diagnosed opportunistic infection or malignancy at
least moderately indicative of underlying cellular
immunodeficiency, where there is no known cause of the
immunodeficiency.  Other persons infected with HTLV-III/LAV
develop less specific or milder symptoms indicating a suppressed
immune system, such as persistent swollen lymph glands,
unexplained fever and weight loss. These clinical and immunologic
characteristics are referred  to  as  "AIDS-related  complex"
("ARC").  Perhaps approximately 10% of the  adults  who  are
infected  with HTLV-III/LAV, as some studies suggest, will ever
progress to ARC.  A small percentage of ARC patients go on to
develop a life threatening opportunistic infection classifying
them as having AIDS.  One study followed 200 ARC patients over
three years, of whom 30% converted to AIDS.

The majority of individuals who have been infected with the virus
do not develop any symptoms, although many may reveal mild to
moderate immune deficiency upon clinical examination.  It is
conservatively estimated that between 300,000 and 1,000,-000
persons in the United States have asymptomatic infection with the
virus.  In New York City, it is currently estimated that 350,000
to 400,000 adults are asymptomatic carriers (most of them people
with one of the classic risk factors for AIDS), while the number
of asymptomatic but infected school-aged children (>15 years of
age) ranges from 200 to 2,000.  Although the risk of developing
ARC or AIDS by people infected with the virus remains unknown,
some laboratory studies suggest that an infected person poses the
same if not potentially more significant risk in transmitting the
virus to others based upon immunologic evidence that the virus is
more easily recovered during the ARC and asymptomatic stages than
with AIDS; this is attributed to the fact that the rapid
replication of the virus in an AIDS victim will have already
infected and thus destroyed a large proportion of the lymphocytes
from the seminal body fluids associated with the documented and
theoretical modes of transmission.

The  incubation period for adults is thought at present to range
from a few weeks to as long as seven years; children who are
infected in utero or via transfusion during the neonatal period
usually develop symptoms within five and one-half to 13 months.
Most of the pediatric patients in New York City who developed the
full-blown syndrome died of their disease, on the average, nine
months after the onset of an opportunistic infection.

In a joint statement issued on August 30, 1985 by Mayor Edward I.
Koch, New York City Schools Chancellor Nathan Quinones, Board of
Education President James F. Regan, and Health Commissioner Dr.
David J. Sencer, a policy was announced under which all children
with AIDS would not be automatically excluded from the New York
City public schools, but would be reviewed on a case-by-case
basis to determine whether their health and development permitted
them to attend school in an unrestricted setting. Thereafter,
under the auspices of the New York City Department of Health, a
four-member panel was established to review the condition of each
school-aged child reported as having AIDS or suspected AIDS and
to make recommendations as to the appropriate educational
placement for that child. Pursuant to the panel's report, the
Commissioner of Health recommended to the Chancellor that one
seven-year-old child ("John/Jane Doe"), who several years ago had
been diagnosed as having AIDS, but who has remained well and done
well in school for the past three years, should continue in
school, and that the child's identity should remain confidential.
This recommendation was accepted by the Chancellor and Board of
Education and a joint statement announcing the decision was
issued on September 7,1985, two days before the commencement of
the school year.

That announcement was the impetus for the application to this
court by petitioners, two local community school hoards from
District 27 and 29, and an individual, Samuel Granirer, who is
president of one of the boards and the father of two children
attending New York City public schools, for an order to show
cause, a temporary restraining order and a permanent injunction
prohibiting respondents from admitting the unidentified child
with AIDS to any public school within New York City attended by
students without AIDS.  On September 9, 1985, the court denied
petitioner's application for a temporary restraining order, but
set the case down for trial on September 12, 1985, on which date
an amended petition was filed seeking a judgment, pursuant to
Article 78 of the Civil Practice Laws and Rules, requiring the
expulsion of John/Jane Doe from school, as well as disclosure of
both the child's identity and the school the child is attending.

On September 13, 1985, the court granted a renewed motion to
intervene by John/Jane Doe, the child whose school attendance was
challenged by petitioners, and on September 18, 1985, the court
granted a motion by the President of the New York City School
Board's Association to intervene as a petitioner.

During the five-week trial, the court heard testimony from 11
medical experts, including Health Commissioner David Sencer and
various physicians who explored the issues concerning AIDS, HTLV-
III/LAV and related medical problems. In addition, Commissioner
Sencer, Chancellor Quinones, and Dr. Polly Thomas, employed by
the Department of Health as a pediatrician epidemiologist,
specializing in AIDS and an appointed member of the panel,
testified concerning their individual participation and the
function and role of their respective agencies in developing and
implementing the City's policy regarding students with AIDS.

While the trial was in progress, Commissioner Sencer convened a
second panel of seven distinguished physicians- four of whom had
previously testified as principal witnesses to review John/Jane
Doe's status.  On November 14, 1985, exactly one month after the
trial concluded, the second medical panel reported that, after
reviewing the medical facts in detail and extensively
interviewing the child's treating physician, they unanimously
concluded that John/Jane Doe does not meet the CDC surveillance
definition of AIDS, but has been infected with the HTLV-III/LAV
virus and clinically evidences immune suppression.  Thus, this
child is no different from the estimated many school children who
are infected with HTLV-III/LAV but who do not have AIDS and who
are unknown to the health or school authorities.

Notwithstanding that such finding raises the specter that the
issues to be determined here may have been rendered moot as it
relates to the Doe child, the court will nonetheless entertain
those issues, particularly since they are likely to recur, and
are of sufficient public importance and interest. (See, e.g.,
Matter of Storar v. Storar, 52 N.Y.2d 363, 36970, 438 N.Y.S.2d
266, 420 N.E.2d 64.) This is not to suggest that this lower court
views itself as having the legal stature or broad powers of
review of a Court of Appeals, a tribunal from which guidance is
enthusiastically awaited even in matters rendered academic by
circumstance; nor does this court mean to suggest that the child
in question served no apparent function in bringing important
public issues to the forefront. The fact is that the decision not
to expel John/Jane Doe from school ignited parental concern and
served as the catalyst to opening the courthouse door to a review
of the challenged governmental action.  In turn, this singular
court proceeding became the immediate focus of intense public
interest and media attention, involving as it did highly
emotional and controversial questions of civil rights,
confidentiality, government, and school-aged children touched by
one of the most publicized lethal infectious killers known to
modern medicine.  Such circumstances more or less dictated that
this court invoke the rarely utilized power to require a trial of
the facts rather than resolve this Article 78 proceeding on the
papers alone. Indeed, from the outset, the parties and the court
recognized an opportunity to conduct a broad-ranging, aggregative
inquiry calculated to advance the public education about AIDS,
the disease, and the legal and social issues concerning the
exclusion from the regular classroom setting of children
diagnosed as having AIDS or ARC or who remain asymptomatic
carriers of the virus. In keeping with this well-intentioned
purpose, the trial at times necessitated exploring matters not
strictly relevant to this one child, examining the fundamental
issues of authority and process under which the respondents
reached their determinations concerning school children with AIDS
and the rationality behind those decisions as established by the
medical and scientific evidence presented in court.



IV

As with many other diseases before it, much of the understanding
of the communicability of AIDS has come from the study of its
epidemiology. At the trial, a number of distinguished physicians
testified with respect to the distribution of the disease and the
patterns of spread of the HTLV-III/LAV virus, relying upon the
available epidemiologic information that has evolved since the
classification of the disease as well as their professional
experience in providing care to AIDS/ARC adult and pediatric
patients and studying the virus under controlled laboratory
conditions. Testifying for the petitioners were Drs. Ayre Ru
benstein, Pediatrician and Immunologist, Professor of Pediatrics,
Albert Einstein Medical College; Jose Giron, Chief of Infectious
Diseases, Flushing Hospital and Medical Center; and Lionel
Resnick, Virologist, National Institute of Health. Testifying for
the respondents were Drs. Donald Armstrong, Director of
Infectious Diseases, Memorial Sloan-Kettering Medical Center;
Louis Z. Cooper, Chief of Pediatrics, St Luke's Roosevelt
Hospital Center; and Margaret Hilgartner, Pediatric Hematologist
and Oncologist, Director of Hemophiliac Clinic, New York
Hospital, Cornell Medical Center. Also offering medical testimony
on behalf of the respondents were Commissioner Sencer and Dr.
Pauline Thomas, themselves  holding impressive credentials in,
respectively, the epidemiology of AIDS and public health service.

Considering that much of the expert testimony over the five-week
trial was fairly uniform on the risk factors and modes of
transmission associated with the AIDS virus, the court has chosen
to compilate only the most salient facts necessary to a
comprehensive understanding of that subject.

Most reported AIDS cases may be separated into groups based on
one or more well-defined risk factors: homosexual and bisexual
men with multiple sexual partners;  intravenous drug abusers with
no history of male homosexual activity who share needles and
other drug paraphernalia; recipients of infected blood and blood
products (e.g., hemophiliacs and persons who had blood
transfusions); infants born to infected mothers; and heterosexual
partners of persons at risk for AIDS. [footnote 1] Among the
4,531 reported cases of AIDS in New York City that have been
fully investigated, 1% do not fall into one of the identified
risk groups for AIDS. Those familiar with the epidemiologic
considerations explain the 1% figure by the fact that these non-
characteristic victims either deny any AIDS risk behavior
(homosexuality, IV drug use, visits to prostitutes), or are
unaware that they themselves have been the sexual partner of risk
group members. Although the total number of cases in each patient
group has increased substantially, the relative proportion of
cases within each group has remained remarkably stable over time.

AIDS has become established primarily as a sexually transmitted
disease that can also be communicated through contaminated blood
or blood products.  HTLV-III/LAV has been isolated from bodily
fluids such as semen, blood, saliva and tears. The AIDS virus has
been found in highest concentrations in blood and semen, and in
lower concentrations in saliva and tears.  Despite positive
cultures from a variety of body fluids of infected persons, there
is no concrete epidemiological evidence to date that the virus
has been transmitted through contact with the saliva or tears of
infected persons, thus leading some physicians to conclude that
there probably needs to be a substantial quantity of virus
particles to transmit the virus. Attempts to isolate the virus
from urine, vomit, stool or cervical and vaginal secretions are
in progress, although some doctors expressed the opinion that
vomit is not a viable medium for transmitting the virus since the
virus would be destroyed by the acid pH of the stomach and its
contents.

HTLV-III/LAV, as with the other human retroviral agents, is a
relatively fragile virus and is of a lower order of infectivity
than, for example, hepatitis B which is much more stable. The
virus is inactivated by disinfectants, such as ordinary household
bleach (diluted 1 part bleach to 9 parts water) and 70% alcohol,
or by moderate heat.

Reinforced by the total absence of documented cases of HTLV-
III/LAV having been transmitted in any way other than by sexual
intercourse, by injection of contaminated blood or blood
products, including needle sharing, or by an infected mother to
her child before or during birth, [footnote 2] the experts
unanimously agree that the virus is not transmitted by casual
interpersonal contact or airborne spread, such as breathing,
sneezing, coughing, shaking hands or hugging. After almost five
years of experience, the surveillance data collected by local and
state departments of health and forwarded to the CDC, as well as
epidemiologic studies of families that include AIDS patients and
of health-care workers who have been exposed to AIDS patients,
speak strongly against transmission of AIDS through casual (non-
sexual) contact.

Other  than  the  sexual  partners  of HTLV-III/LAV infected
patients and infants born to infected mothers, none of the family
members of the thousands of AIDS patients reported to the CDC
have been reported to have AIDS.  Over 500 family or household
members have been investigated who lived together with persons
who were infected with HTLV-III/LAV.  Approximately half of those
studied were children.  Those family members were more than
likely exposed to the saliva of infected patients and, to some
extent a manifestation of the impoverished and unhygienic
environment, had occasion to share beds, food, toothbrushes, baby
bottles, towels and eating and drinking utensils with them, often
without knowledge for some time that an infected family member
was in their midst.  The seriologic testing revealed no finding
of transmission of the virus by means other than sexual contact,
perinatally or blood transfusions.  Significantly, in one study
of families of children with transfusion-acquired HTLV-III /LAV
infection, none of the 50 family members had developed AIDS or
were seropositive, including 10 household members under 5 years
of age, 9 contacts of &~18 years of age and 31 adults, including
15 mothers. [footnote 3] There also have been no confirmed occu
pation-related cases of AIDS in health-care workers in the United
States. Some 1,758 health-care workers who have cared for AIDS
patients have participated in studies to determine the potential
for occupational transmission of HTLV-III/LAV through parenteral
and mucosal routes; many of these workers have sustained
accidental needlestick injuries.  Of the 26 who were found to be
positive for HTLV-III/LAV, all but three of these persons
belonged to a recognized high-risk group.  For one of these three
health-care workers, epidemic logic information was not
available.  The other two both experienced needle-stick injuries
but denied any AIDS risk behaviors. CDC has noted, however, that
in neither of those two cases was a preexposure blood sample
taken to verify that the infection had not occurred prior to
their needle-stick injuries. In addition, the case involving the
female health-care worker from New York City was not fully
investigated, according to Dr. Rand Stoneburner, Director of the
Health Department's AIDS Epidemiologic Surveillance Unit, who at
the behest of the CDC in late July, 1985 attempted without
success to conduct a further interview of the patient regarding
her sexual partner; the second case involving a male laboratory
worker revealed no evidence that he had been exposed to HTLV-
III/LAV-infected blood.  Finally, the reported case from England
of a nurse contracting AIDS involved not a mere needle-stick
injury, but rather a puncture which involved an "injection" of
blood from an AIDS patient into her hand.

Although the present epidemiological and virological information
does not support casual contagion through the day-to-day ac
tivities or contact in the home, school, day-care or foster-care
setting, the presence of HTLV-III/LAV in saliva has nevertheless
raised parent concern about the possible transmission of the
virus through biting.

In addressing the issue raised by petitioners as to the risk of
HTLV-III/LAV transmission through a child with AIDS biting
another child or teacher, the opinions expressed by the medical
experts on all sides of the case narrowly ranged from the
seemingly conservative views of Drs. Giron and Rubenstein
("probably low"; - "certainly possible"; "cannot give complete
assurances") to the more confident judgments of respondents'
witnesses ("no danger"; "beyond remote possibility"; "highly,
highly improbable";  "highly unlikely";  "not a risk of
transmission"). The near unanimity of opinion that biting is an
unlikely route of HTLV-III/LAV transmission in the classroom
setting is premised upon the epidemiologic data indicating no
evidence that saliva has ever been a means of transmission, even
among household members exposed to the saliva of infected
persons; the "extremely low" concentration of the virus in saliva
as suggested by the infrequency in culturing the virus from the
saliva of persons with AIDS; the minimal capacity of younger
children to penetrate the skin to the point where enough virus
particles could enter the system of the bitten child; and the
relative ease in destroying the virus through the same
precautions as are taken in the management of any human bite,
namely, careful washing of the wound with soap and water followed
by alcohol.

Since the transmission of the virus appears to occur by direct
blood-to-blood contact, there was considerable testimony at trial
as to whether HTLV-III can be transmitted in a classroom setting
through blood from an injured child with AIDS getting into an
open cut of another child or teacher.

It is undisputed that the mere presence of HTLV-III/LAV in blood
does not mean that it can be easily transmitted by external blood-
to-skin contact. Most of the physicians' testimony was addressed
to the subject of the so-called "theoretical risk" of
transmitting AIDS through exposure of open skin lesions or mucous
membranes to blood of an infected child during a fight, as a
result of a nosebleed, or even from the childhood practice of
becoming  "blood brothers/sisters". Some doctors expressed
skepticism that a theoretical potential for transmission is
likely inasmuch as the epidemiologic studies of healthcare
workers demonstrate the difficulty in transmitting - HTLV-III/LAV
even where there is exposure to infected blood from needlestick
injuries; indeed, these studies support the conclusion reached by
several doctors that it would probably take a large amount of
blood with a large quantity of virus particles entering into the
bloodstream to transmit the disease. Several doctors dismissed
the risk of transmission posed by a mixing of blood as the result
of a school fight as "generally improbable";  "wild speculation";
"extremely,  highly  improbable"; and "practically non-existent".
Dr. Hilgartner, a hematologist, further explained that if blood
from one person were to drip on another person who had a fresh
cut in the skin, the degree of co-mingling of blood would be
extremely small because the healing process in which a clot
forms, with fibroblast sealing the cut, creates a natural barrier
to prevent any virus from entering.

Whatever minimal theoretical risk exists, the experts
substantially agree that all blood spills and bleeding wounds
should be treated with care regardless of whether children with
AIDS/ARC are attending because there are other blood-borne
illnesses that may be transmitted, some of which (such as
hepatitis B) are considered more contagious than HTLV-III/LAV,
and there may be asymptomatic carriers of HTLV-III/LAV present.
Thus, the routine precautions to deal with the AIDS virus that
have been recommended by the experts, as well as the CDC, closely
follow those used with the hepatitis B virus infection: good
handwashing with soap and water, followed by application of
alcohol; prompt cleaning of soiled surfaces with disinfectants,
such as household bleach diluted 1 part bleach to 9 parts water,
preferably with gloved hands; avoiding exposure to open skin
lesions or mucous membranes by covering bleeding or oozing cuts
or abrasions whenever possible by a gauze dressing or bandage.



V

The petitioners rely on various provisions of the New York City
Public Health Code  to support their contention that the Com
missioner of Health and Chancellor of the Board of Education are
required by law to exclude any AIDS/ARC/HTLV-III child from the
public school system.  Section 11.67 of the Health Code prohibits
the intentional or negligent spread of disease by persons who are
"cases or carriers of communicable disease".  (Emphasis added.)
Section 45.17(b) of the Health Code states, in relevant part:
"The person in charge of the * * * school or children's
institution shall isolate cases and carriers of communicable
disease and provide facilities for their isolation pursuant to
section 11.57." (Emphasis added.)  Similarly, section 49.-15(d)
mandates the exclusion of any child from  the  elementary and
junior high schools as well as public and private high schools
"who is a case, contact or carrier of communicable disease when
required to be isolated or excluded by Article 11 of this Code".
(Emphasis added.)  Although all the foregoing regulations relate
to the control of "communicable disease", in fact, the term
"communicable disease" is not defined at all in the Health Code.
Instead, each disease for which special precautions must be
taken, such as isolation and exclusion, is treated separately
under Article 11. For instance, specific restrictions apply to
cases and contacts of chicken pox (11.13), diphtheria ( 11.19),
infectious hepatitus (11.25), measles ( 11.29), and small pox
(11.43). (See NYC Health Cede,  11.11 through 11.55.)  Yet,
Article 11 does not treat AIDS as a communicable disease or
contain any specific precautions or restrictions relating to AIDS
cases, carriers or contacts.  At best, the regulations of the
City treat AIDS as reportable, but not communicable.  While AIDS
does not appear on the general list of diseases and conditions
reportable to the Department as set forth in section 11.03 of the
Health Code, cases or suspected cases of AIDS are reportable
under a special section (NYC Health Code,  11.07, as amended,
September 26,1983) that accords such case reports and records
confidentiality.  The fact that AIDS is "reportable" does not
mean, however, that it has been classified as "communicable". For
example, as respondents correctly point out, falls from windows
and instances of food poisoning are reportable ( 11.03), but
certainly are not communicable. Thus, since AIDS is nowhere
defined or classified as a communicable disease, the health
regulations of the City of New York relied upon by petitioners
are all inapplicable.

At the state level, the power rests with the Public Health
Council to "designate [in the Sanitary Code] the communicable dis
eases which are dangerous to the public health" (Public Health
Law,  225(5)(h). [footnote 4] The statute defines the word
"communicable" as an "infectious, contagious or communicable
disease" (Public Health Law,  2(l).  While the Public Health
Council has designated some 42 diseases as "infectious,
contagious or communicable" (10 NYCRR 2.1[a]), it has not
included AIDS among the list of such diseases.  Thus, despite the
State Public Health Council having addressed the AIDS issue by
emergency measures making cases or suspected cases of AIDS
reportable to the State Department of Health on a strictly
confidential basis (10 NYCRR 24.2, filed June 21, 1983, effective
October 6,1983), and more recently, authorizing the closing of
any bars, clubs and bathhouses "in which high risk  sexual
activity  takes  place"  (10 NYCRR 24-2, filed October 25, 1985,
effective December 23, 1985), it has apparently declined to
exercise its statutory power to amend the sanitary regulations
(Public Health Law,  220, 225), to include AIDS on the list of
communicable diseases.

 [1]  Here too, the fact that AIDS is reportable does not
classify it as a "communicable" or "infectious" or "contagious"
disease.  In any event, to the extent the amended petition relies
on section 906 of the State Education Law, which requires
exclusion of pupils with an "infectious or contagious disease
reportable under the Public Health Law", such reliance is mis
placed since that statute is inapplicable to the City of New York
(see Education Law,  901).

[2] Thus, petitioners have failed to demonstrate that respondents
were required by law to exclude AIDS children from the classroom.
In fact, the State Public Health Council and State Education
Department addressed this very issue and concluded:

"For most infected school-aged children, the benefits of an
unrestricted setting outweigh the risks of their acquiring po
tentially harmful infections in the setting and the apparent
nonexistent risk of transmission of HTLV-III / LAV.  These
children should be allowed to attend school and after-school day-
care in an unrestricted setting."

Respondent Sencer concedes that under his broad power and
discretion to protect the public health and to prevent the spread
of disease (N.Y.C. Charter,  556; N.Y.C. Health Code,  3.01), he
has the discretionary authority to conclude, as petitioners
strongly urge, that AIDS is communicable in the classroom
setting, or that a child with AIDS in the classroom would promote
the spread of the disease, requiring exclusion of that child from
school. His refusal to exercise that discretion in that direction
must be examined against the record and the standards of review
established by law.

Apart from the general body of medical knowledge concerning AIDS,
as previously discussed, the CDC, New York State and other
states, and all but one of the expert witnesses at trial agree
with the policy of the Commissioner not to exclude children with
AIDS from school unless their physical, neurological,
developmental or behavioral condition makes it necessary for them
to be educated in a more restricted setting. Although Drs. Giron
and Rubenstein qualified their opinions with the condition that
adequate precautions be taken, they as well as the expert
witnesses called by respondents, concluded that children with
AIDS should not automatically be excluded from school. That
conclusion is consistent with the epidemiological evidence,
including the family and health-care worker studies, which show
that there is essentially no risk of transmission of HTLV-III/LAV
in the classroom setting.

The CDC, New York and other states that have issued guidelines
and policy recommendations similarly conclude that children with
AIDS should not, absent exceptional circumstances, be excluded
from school.

The CD C's recommendations provide, in pertinent part:

"2.  For most infected school-aged children, the benefit of an
unrestricted setting would outweigh the risks of their acquiring
potentially harmful infections in the setting and the apparent
nonexistent  risk  of  transmission  of HTLV-III/LAV.  These
children should be allowed to attend school and after-school
daycare and to be placed in a foster home in an unrestricted
setting."

The Connecticut guidelines provide: "2.  As a general rule, a
child with AIDS/ARC should be allowed to attend school in a
regular classroom setting with the approval of the child's
physician and should be considered eligible for all rights,
privileges and services provided by law and local policy of each
school district."

And the New Jersey guidelines provide:

"1.  Children entering grades K through 12 with AIDS/ARC or HTLV-
III antibody shall not be excluded from attending school unless
the following exceptional conditions are evident:

a.  The student is not toilet-trained or is incontinent, or
otherwise is unable to control drooling.

b.  Is unusually physically aggressive, with a documented history
of biting or harming others."

Taking a more conservative approach, the only expert witness to
conclude that no children with AIDS should be permitted in school
was Dr. Resnick, who was not an epidemiologist, had done no
research on the issue   of   the   transmissibility   of HTLV-
III/LAV, and conceded his lack of familiarity with the findings
derived from the studies of family members and health-care
workers.  His disagreement with the CDC and epidemiologists,
therefore, was not based on any evidence that HTLV-III/LAV could
be transmitted in the classroom setting, but only on what he de
scribed as a "philosophical difference" as to the sufficiency of
the data "at this moment in time".

With respect to petitioners' implication that the CDC's reference
to "biting" and uncoverable oozing lesions" reflect a real
concern by the CDC for the risks of HTLV-III/LAV transmission in
the school setting, it would be misleading to promote such a
notion since the CDC's guidelines make clear that the
"theoretical potential" for transmission by these means among
younger children and some neurologically handicapped children
derives from experience 'with other communicable diseases"

Throughout this case, petitioners focused their point of attack
upon the reluctance of the medical experts to unequivocally state
with certainty that HTLV-III/LAV cannot be transmitted except
through previously identified routes of transmission. The tes
timony reflects, however, that it is not in the nature of medical
science to be governed by a "no risk" standard,

[3]  Understandably,  the  public,  not recognizing the
underlying medical tradition, is suspicious of the seeming
uncertainty. Yet, the fact that some laypeople, both learned and
unlearned, and some physicians of great skill and repute, may
differ as to the efficacy and necessity for excluding from the
regular classroom setting the HTLV-III/LAV-infected child who
otherwise demonstrates a normal physical, neurological,
developmental and behavioral condition, is not reason enough to
declare the Commissioner's policy to be without consideration or
in disregard of the facts. As stated in Matter of Viemeister v.
White, 79 N.Y. 235, 241, 72 N.E. 97: "The fact that the belief is
not universal is not controlling, for there is scarcely any
belief that is accepted by every one.  The possibility that the
belief may be wrong and that science may yet show it to be wrong
is not conclusive * * *

[4] Since "the apparent nonexistent risk of transmission of HTLV-
III/LAV" in the school setting finds strong support in the
epidemiological data accumulated over the five years of
experience with this disease, as exhaustively explored on the
record, and because the automatic exclusion of children with AIDS
from the regular classroom would effect a purpose having no
adequate connection with the public health, safety or welfare, it
would usurp the function of the Commissioner of Health if this
court adjudged, as a matter of law, that the non-exclusion policy
was arbitrary and capricious or an abuse of discretion simply
because in the court of public opinion, that particular policy
was -perhaps, or possibly-not the best choice.  Although this
court certainly empathizes with the fears and concerns of parents
for the health and welfare of their children within the school
setting, at the same time it is duty bound to objectively
evaluate the issue of automatic exclusion according to the
evidence gathered and not be influenced by unsubstantiated fears
of catastrophe. (See, e.g., Matter of Fannie Mae Jackson v. New
York State  Urban Devel.  Corp.,  110 A.D.2d 304, 494 N.Y.S.2d
700.)

Finally, automatic exclusion from school of all children with
AIDS would violate their rights under the Rehabilitation Act (See
29 U.S.C.  794) and to equal protection of the laws.

Given that the question of excluding children with AIDS from
school has only recently generated legal activity, it is not at
all unusual that  the best available legal authority is found in
[* * *] federal appellate decisions concerning other communicable
diseases (hepatitis B [* * *] ). [footnote 5]  Six years ago, the
Federal courts prevented the New York City School Board from
limiting the school attendance of some 50 retarded children
infected with hepatitis B.  (New York State Assn. for Retarded
Children, Inc. v. Carey, 466 F.Supp. 479 [E.D.N.Y.] affd. 612
F.2d 644 [2d Cir.1979].)

The District Court held, in two separate opinions, that either
exclusion or isolation of these students would violate their
rights under the Rehabilitation Act, the Education of the
Handicapped Act, the New York Education Law, and the Equal
Protection Clause of the Fourteenth Amendment. (New York State
Assn. for Retarded Children, Inc. v. Carey, 466 F.Supp. 479 [E.D.
N.Y., 1978], supra; New York State Assn. for Retarded Children,
Inc. v. Carey, 466 F.Supp. 487 [E.D.N.Y. 1979].)

In affirming, the Court of Appeals for the Second Circuit stated
at page 649:

"The New York City Board of Education is a recipient of federal
funds. The children in this suit are clearly handicapped within
the meaning of Section 706(7) [Rehabilitation Act].  They were
excluded from regular public school classes and activities
'solely by reason of their handicap,' since only mentally
retarded youngsters who were carriers of the hepatitis B antigen
were isolated; no effort was made to identify and exclude normal
children who were carriers.  Section 504 is thus fully applicable
to this case."

[5, 6]  Section 504 of the Rehabilitation Act of 1973 (29 U.S.C.
794) provides, inter alia:

"No otherwise qualified handicapped individual in the United
States, as defined in section 706(7) of this title, shall, solely
by reason of his handicap, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial
assistance * *

A handicapped individual is:

** any person who (i) has a physical or mental impairment which
substantially limits one or more of such person's major life
activities, (ii) has a record of such an impairment, or (iii) is
regarded as having such an impairment." (29 U.S.C.  706[7][B].)

The regulations that have been promulgated under the
Rehabilitation Act define "physical or mental impairment" to mean

"(A) any physiological disorder or condition, * * * affecting one
or more of the following body systems: * * * hemic and lymphatic
* * *"  (34 C.F.R.  104.3[j][2][i][A].)

Since HTLV-III/LAV destroys certain lymphocytes, a person with
AIDS clearly has such a "physical impairment."  Further, the
regulations define the phrase "is regarded as having an
impairment" to mean any person who:

(C) has none of the impairments defined in * * * this section but
is treated by a recipient as having such an impairment." (34
C.F.R. 104.3[j][2][iv].)

If students with AIDS were automatically excluded from school,
they would clearly be "treated * * * as having such an impair
ment" by the Board of Education, a "recipient" of federal funds.
Accordingly, children with AIDS are handicapped within the
meaning of the Rehabilitation Act.  (See, also, People v. 49 W 12
St. Tenants Corp., N.Y.L.J., October 17,1983, p. 1, col. 1 [Su
preme Ct., New York County].)

The Rehabilitation Act would equally apply to a child such as
John/Jane Doe who, by   evidencing   past   infection   with HTLV-
III/LAV, "has a history of, or has been misclassified as having,
a * * * physical impairment that substantially limits one or more
major life activities" (34 C.F.R.  104.3[j][2][iii]), or, by
exclusion, would be "treated * * · as having such an impairment."
(34 C.F.R. 104.3 [j][2][iv][C].)

 [7, 8]  When one considers that several medical experts
described the hepatitis B virus as "far more contagious" than the
AIDS virus, the failure of proof in this case is even greater
than that experienced by the Board of Education in Carey:
petitioners not only failed to establish that the transmission of
HTLV-III/LAV in the classroom setting is anything more than a
remote theoretical possibility and that the Doe child engaged in
any form of behavior that poses even a theoretical risk, their
own witnesses did not dispute the testimony, as well as the
federal and state view, that any theoretical risk can be
substantially reduced by routine precautions. Accordingly, if the
policy were to have been the exclusion of children diagnosed as
having AIDS while not excluding children with ARC or those merely
infected with the HTLV-III/LAV virus, it would constitute
discrimination under section 504 of the Rehabilitation Act.
Thus, the policy of non-exclusion would appear to have been
correct. Since there is no prima facie showing of discrimination
here, the burden is not on the agencies to validate their policy.

This ultimately brings us to the issue of whether the exclusion
of known children with AIDS without imposing a similar policy on
children with ARC or those who are asymptomatic carriers of HTLV-
III/LAV would constitute a violation of the Equal Protection
Clause  of  the  Fourteenth Amendment.

With the recent medical finding by the second panel that, the Doe
Child "does not at this time meet the CDC surveillance definition
of AIDS, but has been infected with the HTLV-III virus * * *
[and] has clinical and laboratory evidence that put him/her in a
category of immune suppression," the child's attorney asserts
that to impair Doe's right to an education would violate his/her
right to equal protection of the laws.

[9-11] Public education is not a fundamental "right" granted to
individuals by the United States Constitution.  (San Antonio
Independent School Dist. v. Rodriguez, 411 U.S. 1, 35, 93 S.Ct.
1278, 1297, 86 L.Ed.2d 16 [1973].)  However, once the state, like
New York, chooses to provide public education (New York
Constitution, Art. 11,  1), the right to an education "must be
made available to all on equal terms". (Brown v. Bd. of Educ.,
347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 [1954].) While
the denial of attending the school of one's choosing is not
tantamount to a denial of a right to education (Johnpoll v.
Elias, 513 F.Supp. 430, 432 [E.D. N.Y.]), the legal system
recognizes education's impact upon the "social * * *
intellectual, and psychological well-being" of the child (Plyer
v. Doe, 457 U.S. 202, 222, 102 S.Ct 2382, 2397, 72 L.Ed.2d 786
[1982]), and the benefits the child derives from the
socialization process in the regular classroom.  (Hairston v.
Drosick, 423 F.Supp. 180,183 [S.D.W.Va.1976].)

[12]  Absent any rational basis for petitioner's proposed
exclusion of only known AIDS cases or carriers of the virus, with
out imposing such exclusion in the case of ARC patients or
asymptomatic carriers who are as likely to present a risk of
contagion because they too are infected with HTLV-III/LAV, such a
proposal must be deemed a denial of the equal protection of the
laws.  In this respect, the parallels between this case and Carey
are striking.

In Carey, as here, the evidence established that there were
substantial numbers of children in the school system who were
infected with the virus and who were not being excluded or
isolated.  The District Court held that the constitutionality of
the Board's proposal could not be sustained because "among the
approximately 1,000, 000 children in New York City's public
school system, no other group is tested for hepatitis B, nor is
any action planned to identify or take special precautions with
respect to any hepatitis B carriers other than those who are
retarded." (Carey, supra, p. 504.)  Accordingly, the District
Court concluded, the segregation of retarded hepatitis B carriers
lacked any rational basis and violated their equal protection
rights. Similarly, in this case, an estimated 500,000 persons, of
whom 200 to 2,000 are school-aged children, in New York City, are
asymptomatic carriers of HTLV-III/LAV; these persons are as
likely to transmit the virus as a victim of AIDS. Because of the
shortcomings of the antibody test and the social implications of
a mandatory screening program, none of the medical experts,
including petitioner's expert virologist, Dr. Resnick,
recommended blood testing of all New York City school-aged
children for the virus to determine whether they should be in
school. In addition, not only is there no reporting requirement
for ARC or asymptomatic carriers, based upon the lack of any
evidence that more than a remote theoretical possibility of
transmittal exists within the school setting, as well as the
recommendation by both the Centers for Disease Control
(Recommendation 9) and State Department of Health (Recommendation
1) that mandatory screening as a condition for school entry "is
not warranted based on available data", there is no program for
testing and identifying students, teachers, cafeteria workers or
other school personnel infected with the virus, nor is there a re
quirement that such persons be reported to the Health Department.

It is difficult to conceive of a rational justification imposing
a discriminatory burden on known carriers of HTLV-III/LAV while
untested and unidentified carriers still remain in the classroom
where they pose the same theoretical (though undocumented) risks
of transmitting the virus to normal children.



VII

The guidelines issued by the CDC and the New York State
Department of Health, the policy of the New York State Education
Department, and the expert witnesses on both sides endorse the
view that children with AIDS should be permitted to attend school
after a case-by-case review to determine whether circumstances
exist that would tend to pose increased risks to others or
require special precautions.

Both the CDC (Recommendation I) and the State Health Department
(Recommendation 2) recommend:

"Decisions regarding the type of educational and care setting for
HTLV-III/LAV-infected  children  should  be based on the
behavior, neurologic development, and physical condition of the
child and the expected type of interaction with others in that
setting. These decisions are best made using the team approach
including the child's physician, public health personnel, the
child's parent or guardian, and personnel associated with the
proposed care or educational setting. In each case, risks and
benefits to both the infected child and to others in the setting
should be weighed."  (Emphasis added.)

Similarly, the policy of the State Education Department, as
stated by Commissioner Gordon M. Ambach on September 4, 1985, is
that:

*    * * no child be excluded from school attendance solely
because the youngster has been diagnosed as infected with AIDS.
Instead, school authorities should review each case individually
with the appropriate medical personnel and the child's parents to
determine whether the youngster can be accommodated in a normal
education setting without undue risk to himself or others."

[13]  The court begins by addressing petitioners' contention that
the case-by-case inquiry of children suspected of having AIDS
should have been conducted by referral to the local school
district's Committee on the Handicapped rather than through the
device of an advisory panel appointed by respondent Sencer.  The
Education of the Handicapped Act (20 U.S.C.  1400 et seq.) was
enacted in 1975 to

"assure that all handicapped children have available to them * *
* a free appropriate public education which emphasizes special
education and related services designed to meet their unique
needs, to assure that the rights of handicapped children and
their parents and their guardians are protected, [and] to assist
States and localities to provide for the education of all
handicapped children

A similar concern was expressed by the New York State Legislature
in enacting legislation relating to handicapped children.
(Education Law,  4401, et seq.)  In New York, the mechanism for
securing appropriate special education programs and services for
handicapped students is by a referral to the local district's
Committee on the Handicapped, a multi-disciplinary team
established in accordance with the provisions of section 4402 of
the Education Law. The pivotal question is whether a child
diagnosed as having AIDS would fall within the definition of a
"handicapped child".  Evidently, the term is more narrowly
defined in the Education of the Handicapped Act than the
Rehabilitation Act.  Under the Education of the Handicapped Act,
the term includes those children evaluated as being health
impaired who, because of those impairments, need special
education and related services. (20 U.S.C.  1401[a][1].) "Health
impaired" is defined as "having limited strength, vitality or
alertness due to chronic or acute health problems * * * which
adversely affect a child's  educational  performance."   (34
C.F.R.  300.5[h][7].)  Section 4401(1) of the Education Law
defines a "child with a handicapping condition" as one "who,
because of mental, physical or emotional reasons can receive
appropriate educational opportunities from special services and
pro grams   * * *  Thus, while a child with AIDS could become
handicapped as a result of deterioration in his or her condition,
the evidence clearly supports the determination that such
children are not handicapped for purposes of referral to a
Committee on the Handicapped merely because they have AIDS/ARC
or  are  infected  with  the HTLV-III/LAV virus.

[14] In this court's view, there are several reasons why it seems
more appropriate not to rely exclusively on the underlying data
furnished by the child's physician and parent.   First,  because
infection  with HTLV-III/LAV may result in a spectrum of medical
conditions of differing severity, even the available evaluative
information of a physician experienced with AIDS may not indicate
a clear diagnosis in order for the record to support an
appropriate determination. Second, given the relatively few
treating physicians with background, experience, and expertise in
this field, the panel should have the responsibility to
independently determine the validity of the examination results
obtained by a treating physician before it adopts them, rather
than merely defer to the evaluation data from the physician or
parent.  Third, the panel should invite the appropriate
professionals most familiar with the child's medical history to
attend any meeting concerning the appropriate placement for such
a child. Fourth, the panel should strongly consider, where
appropriate, having the child independently evaluated for
neurological and psychological disorders. Finally, an adversary-
type proceeding, similar to that employed in New Jersey, might
serve the worthwhile purpose of bringing the local school
district into the evaluation process. [footnote 6]

[15]  In addition, since the panel is ultimately determining the
educational placement of the child, it must adhere to the minimum
procedural safeguards required by the Due Process Clause. (cf.
Education law,  4404; 8 NYCRR 200.5; Johnpoll v. Elias, 513
F.Supp. 430, 431, supra; see, generally, Goss v. Lopez, 419 U.S.
565, 574, 95 S.Ct 729, 736, 42 L.Ed.2d 725 [1975].)



VIII

Cases of AIDS are reported to the Department pursuant to the
reporting requirements set forth in the State Sanitary Code (10
NYCRR Part 24)  24.1, which provides in pertinent part:

"All cases or suspected cases of Acquired Immune Deficiency
Syndrome (AIDS) shall be reported to the Commissioner of Health
by city, county and district health officers, physicians,
hospital administrators, laboratories or persons in charge of
state institutions."

Section 24.2 of that regulation requires that "such reports and
additional information shall be kept confidential, as required by
Public Health Law, section 206(1)(j)."

Public Health Law, section 206(1)(j) provides in pertinent part:

"The Commissioner shall * * * cause to be made such scientific
studies and research which have for their purpose the reduction
of morbidity and mortality.

** * In conducting such studies and research, the commissioner is
authorized to receive reports on forms prepared by him * * * Such
information when received by the commissioner * * * shall be kept
confidential and shall be used solely for the purposes of medical
or scientific research or the improvement of the quality of
medical care through the conduction of medical audits."  (Em
phasis added.)

The Legislature in enacting section 206(1)(j) of the Public
Health Law created a comprehensive and impervious shield to
protect the ability of the Health Department to conduct essential
scientific research and medical audits.  In explicit language,
the statute provided that information received from participants
in health studies or audits would be kept confidential, even from
judicial process.  This statutory commitment of confidentiality
is designed to effectuate two important public policies of the
State of New York: 1) protection of the privacy of its citizens
and 2) creation of an atmosphere of trust to enable the Health
Department to gather the kind of complete health data it needs to
carry out its statutory purposes. (Matter of Love Canal, 112
Misc.2d 861, 863, 449 N.Y.S.2d 134, affd. 92 A.D.2d 416, 460
N.Y.S.2d 850.)

The statute provides for no exception to these restraints. In
Matter of Love Canal (92 A.D.2d 416, 460 N.Y.S.2d 850, supra),
the court stated clearly the unqualified nature of the
confidentiality provision's prohibition against disclosure.

Special Term held that Public Health Law  206(1)(j) prohibited
disclosure of the records in the possession of the Department of
Health. (Matter of Love Canal, 112 Misc.2d 861, 449 N.Y.S.2d 134,
supra.) In affirming, the Fourth Department stated (pp. 422423,
460 N.Y.S.2d 850): "This section, which was designed as a shield
to protect the ability of the Department of Health to conduct
essential studies, specifically prohibits the commissioner from
violating the confidentiality attached to the records.
Plaintiffs' waiver of the physician-patient privilege is an
inapposite consideration in the context of the statutory
direction that mandates the duty of nondisclosure to the
Commissioner of Health. The individual plaintiffs cannot waive a
privilege which does not belong to them." (Emphasis added.)

To the extent there may be any exception to the absolute
confidentiality protection of Public Health Law  206(1)(j), such
exception has been unequivocally limited to reports or records
other than information imparted to the Commissioner of Health in
connection with research or scientific studies designed to reduce
"morbidity and mortality."  Section 11.07 of the New York City
Health Code (Confidentiality of Reports and Records), as amended,
thus provides in pertinent part:

"(a) Reports and records of cases of Acquired Immune Deficiency
Syndrome (AIDS)   * * and records of clinical or laboratory
examination shall not be subject to subpoena or to inspection by
persons other than authorized personnel of the Department except
as follows:

     *    *    *    *

(2) Such reports and records relating to Acquired Immune
Deficiency Syndrome (AIDS) * * * may be disclosed or inspected
upon submission to the Department * * * of a written consent * *
* [i]n * * * cases involving such reports and records of minor
patients, * * * signed by the parent or lawful guardian of the
child.  Under no circumstances shall epidemiological information
relating to the control of Acquired Immune Deficiency Syndrome, *
* * be deemed reports or records under this section so as to
subject said information to disclosure with or without consent.

*    *    *    *    *

The confidentiality provided by section 206(1)(j) guards the
information gathered by the state and local public health
agencies in carrying out their surveillance task. By this task,
such agencies are charged with the responsibility of monitoring
the progress of diseases which may be highly contagious or of
epidemic proportions.

This is not the only task of public health agencies and may
provide only a small portion of the data and records which they
accumulated.  (See, e.g., N.Y.C. Health Code,  49.17 [School
Medical Records].) Section 206(1)(j), however, provides absolute
confidentiality to the surveillance data and does not deal with
the records of the other tasks. The other records of the New York
City Department of Health are guarded by the more limited
confidentiality of section 11.07 of the New York City Health
Code, and thus available for release upon the written consent of
the parent or guardian of the minor child. It is noteworthy,
however, that this section of the Health Code is consistent with
Public Health Law, section 206 to the extent that it specifically
exempts "epidemiological information" from disclosure with or
without consent.

Respondent Sencer has never denied the fact that the information
presented to the review by panels concerning identified school-
aged children with AIDS, including the child who is now attending
school, was obtained from the Department of Health through the
reports made to its AIDS Epidemiologic Surveillance Unit. By his
broad use of section 206, utilizing the AIDS surveillance
information to identify individuals for panel review, Dr. Sencer
came dangerously close to compromising the very data which that
section was intended to protect. The data may be used for
statistical purposes or for research and study of the
epidemiology of the disease.  Here, the data, in part, was
revealed to both panels for determining the fitness of an
individual to attend school.  This appears to be a violation of
the statute and thus a breach of confidentiality.  If this be
correct, then any additional data collected by the panels, would
not be surveillance data and not protected by section 206.  It
might be argued that the problem would never come about as the
data would never be revealed. This would only be true if Dr.
Sencer meant never to act on a possible committee recommendation
that a teacher or some other school official be informed in a
given case. This would render the panels a fraud. If on the other
hand, Dr. Sencer intended affirmatively to act on such
recommendation, then he intended a clear violation of section
206.  Thus, the Commissioner's use of section 206 to create a
wall of secrecy may have opened a Pandora's Box.

[16, 17]  What, then, is the solution to this question?  Clearly,
the dictatorial imposition of a universal answer under the guise
of statutory compliance is not it. The CDC guidelines suggest
case-by-case review of each child which must be sensitive to all
the needs of the child including confidentiality. This is one of
many possibilities. Such individual case review raises the
additional question of how the identity of such individuals would
be ascertained. The use of surveillance data is not a permitted
vehicle.  While the legislature could change this restriction,
the court would discourage such action as it would adversely
impact on the important task of tracking the history of certain
diseases. Yet, whatever method for referral is eventually chosen,
the decision as to whether and to whom the identity of the child
should be revealed will ultimately reside with the review panel.
The answer to these questions is not easy and the court will not
succumb to the quick fix of choosing one.

[18]  Under the  Constitution of this State, the resolution of
such public policy questions must be the responsibility of the
legislative and executive officials addressing it in an open
forum.



Footnotes:

1.   Most of these classified heterosexual contact AIDS cases arc
women who are the sexual partners of male intravenous drug users.
While some male AIDS patients with no identified risk have given
a history of multiple heterosexual contacts with female
prostitutes, additional evidence for female to male transmission
of HTLV-III/LAV in the United States is still being sought.
Critics argue that men are not apt to admit past homosexual
encounters or drug use; they further challenge the
epidemiological data underlying one recent study suggesting
female prostitutes in Central Africa are a high-risk group for
transmitting HTLV-III/LAV infection and, in any event, the
relevance of such a study to the spread of the infection among
the heterosexual population in the United States.

2.   There is also one reported case outside the United States of
transmission via breast feeding.

3.   Consistent with the epidemiologic data and family studies
indicating that casual transmission of HTLV-III/LAV does not
occur are findings recently published in the New England Journal
of Medicine demonstrating the infrequent isolation of HTLV-
III/LAV virus from the saliva specimens of infected patients. Ho,
D.D. Byington, RE, et al, Infrequency of isolation of HTLV-III
Virus From Saliva In AIDS, N.Eng.J.Med. Dec. 19, 1985, p. 1606.
The most extensive family study completed to date was reported
within the past week, also in the New England Journal of
Medicine, confirming that the virus could not be transmitted
through casual contact. New York Times, Chief of Study on
Victims' Families Doubts AIDS Is Transmitted Casually, February
6, 1985.

4.   As enacted by Chapter 626 of the Laws of 1971, the
applicability of the State Sanitary Code as a minimum standard
was extended to include New York City. Thus, the Public Health
Council was given jurisdiction to participate constructively in
the State Commissioner's statewide decisions which affect New
York City.  The City of New York, like other political
subdivisions, still reserves the power to enact sanitary
regulations [as appear in the Health Code] not inconsistent with
the Sanitary Code (Public Health Law,  228[2]) or state law (New
York City Charter,  558[b]).

S.   In Kokomo, Indiana, a 13 year old hemophiliac with AIDS has
been attending school via telephone hookup while his lawyers
exhaust four levels of state administrative appeals ordered in
August by a Federal judge (White v. Western School Corp., IP 85-
1192C. slip op. [S.D.Ind.. August 23, 1955].)

6.   Since it appears that only epidemiological surveillance data
is cloaked with absolute confidentiality (see discussion, infra
XIII), the revelation of a child suspected of having AIDS or
related conditions will in most cases come from outside referral
sources, such as those delineated in the regulations on the
Committee for the Handicapped. (8 NYCRR 200.4[a].)