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

Text File | 1993-01-14 | 18KB | 375 lines

/* This case is reported in 595 N.Y.S. 2d 876 (Sup. 1993).
This case is a very important discussion of the law
concerning the rights of the homeless who are HIV positive
in a constitutional context. */
Kenneth Mixon, Ralph D. Hernandez Pagan and Michael Snyder,
on their own behalf and on behalf of all other persons
similarly situated, and the Coalition for the Homeless,
Plaintiffs,
and
Wayne Phillips, on his own behalf and on behalf of all other
persons similarly situated, and Doris D., Plaintiffs-
Intervenors,
v.
William J. Grinker, as Commissioner of the New York City

Human Resources Administration, and Cesar A. Perales, as

Commissioner of New York State Department of Social

Services, Defendants.



Supreme Court, New York County, IAS Part 12.

March 4, 1993

EDWARD H. LEHNER, Justice.

The issue posed by the trial of this action is whether the
City of New York (the "City") is required to provide a
person infected with the human immunodeficiency virus
("HIV") who has a medical condition that constitutes an "HIV
Related Disease", as defined by the AIDS Institute of the
New York State Department of Health, is entitled to the same
shelter benefits as a person who has AIDS, as defined by the
federal  Centers  for  Disease  Control ("CDC").


Prior to the institution of this action the City had adopted
a policy of providing individuals diagnosed as having CDC
defined AIDS with individual housing units or granting rent
subsidies. Although recently, under State Department of
Social Services regulations, all public assistance
recipients who have an HIV Related Disease have been
declared eligible for rent subsidies, they are not entitled
to other benefits, which include individual housing and a
cash allowance for nutrition and transportation expenses,
unless their condition constitutes AIDS under the CDC
definition.


Pursuant to the CDC a person is considered to have AIDS if
he or she has an HIV infection and suffered one of several
opportunistic diseases.  The State definition of an HIV
Related Disease includes other illnesses not contained on
the CDC list. As of January 1, 1993, which was after the
trial of this action, the CDC definition, was amended to
include HIV infected persons who since their infection
experienced pulmonary tuberculosis ("TB"), cancer of the
cervix, or two or more episodes of bacterial pneumonia Also,
now included are infected persons who have 200 or fewer CD-t
cells per microliter of blood, which is considered to be
approximately one fifth of the normal level. Such cell count
determines the extent of body's immune defenses. Thus, a
person who on December 31, 1992 would not be deemed to have
AIDS would, in light of the definitional change, be
considered to have the disease on the next day if he or she
fell within one of the categories added as of January 1,
1993. Although there have been estimates that the expanded
definition would double the number of persons deemed to have
AIDS, the City
has indicated that it will provide the same services to
those who fit the amended definition as it did to those who
met the prior guidelines.  It is noted that while there
appears to be no regulation requiring the City to provide
any specific services to AIDS victims (other than the
aforesaid rent supplement), lawyers for the City stated at a
conference held on February 25, 1993 that the City intended
to continue to provide the existing services.

This action was originally instituted by three homeless
individuals, who had an HIV Related Disease but not CDC
defined AIDS, on behalf of themselves and all others
similarly situated. As a result of the aforesaid
definitional change, it is believed that the number in the
plaintiff class has been significantly reduced as the
categories added to the CDC definition probably included the
largest number of persons having a condition set forth in
the State list that was not included in the CDC definition.
However, no party could provide an estimate of the number of
persons now in the class.  Said plaintiffs sought a judgment
declaring that the City and State defendants are mandated to
provide them "with medically appropriate housing which
includes, at a minimum, a private sleeping area and sanitary
facilities". They asserted that placing HIV infected
persons, whose immune systems are severely weakened, in a
shelter where many residents have infectious diseases
endangers the lives of the HIV infected individuals.



Persons who were part of the class when the action was
commenced, but who are now classified as having CDC defined
AIDS as a result of the January 1993 amendment have as a
consequence thus obtained the relief sought by plaintiffs.



After housing was provided by the City to the original three
individual plaintiffs, an application was made by Wayne
Phillips (a person allegedly similarly situated) to
intervene and for a preliminary injunction to require the
City to provide him with medically appropriate housing.  The
City cross-moved to dismiss pursuant to CPLR 3211(a)7.



In my decision (N.Y.L.J., Jan. 24, 1989, p. 21, c. 1) the
motion to intervene was granted without objection, it having
been recognized by all that the issues presented were of
significant public importance and unfortunately certain to
recur. The request for class  certification  was  denied on
the grounds that members of the proposed class would be
protected under the princi ples of stare decisis.  In
granting Phillips' motion for a preliminary injunction I
stated:

"The papers show that Phillips has been diagnosed with
symptomatic AIDS Related Complex, an advanced stage of HIV
infection where his immune system is seriously impaired.
Although his illness would not be deemed AIDS under the CDC
definition, plaintiffs have submitted medical evidence
indicating that with regard to need for medically
appropriate housing, there is no reason for a distinction
between CDC defined AIDS and other HIV related illnesses,
and that many persons die of HIV related illnesses without
ever meeting the criteria for CDC defined AIDS.

"Since providing Phillips shelter in a bar-racks type
setting may well involve irreparable danger to his health,
and since he
stands a likelihood of success in establishing that a person
in his condition is entitled to be provided with shelter
that is more private, the court finds that Phillips has
satisfied the prerequisites for the issuance of a
preliminary injunction, and thus hereby directs that,
pending the trial of this action, he be provided shelter by
the City in a facility where he will not be in close
proximity to those who may have infectious diseases.

"Whether the minimum housing that the City must provide
calls for a private sleeping area as demanded by plaintiffs
is an issue that cannot be determined at this time, but must
await the trial, as is the question as to how advanced the
infection must be to entitle a homeless person to housing in
a noncongregate facility."

The City's motion to dismiss was denied except to the extent
that the Coalition for the Homeless (the "Coalition") was
dismissed as a party plaintiff for lack of standing.  On
appeal that dismissal was reversed (157 A.D.2d 423, 556
N.Y.S.2d 855), the court concluding that other than
reinstating the Coalition as a plaintiff, "the order should
be otherwise affirmed". Notwithstanding such language, it is
noted that since the only branch of the order appealed from
related to the aforesaid dismissal, the propriety of the
balance of the order was not before that court. However, the
court in granting standing to the Coalition observed (p.
428, 556 N.Y.S.2d 855):

"While the municipal defendants have recognized the
necessity of providing noncongregate housing for those with
CDC-defined AIDS, such facilities have not been made
available to those suffering from HIV-related illnesses even
though the effects of such illnesses may indeed be
devastating and life-threatening.  The immune systems of
those infected with HIV illnesses are just as susceptible to
infectious diseases, such as tuberculosis, which have been
found to be pervasive in the city shelter system."

Subsequently, apparently as a result of the institution of
this suit, the City devised and, after the adoption of
several changes requested by State officials, the State
approved the Comprehensive Care Program ("CCP") whereby
segregated space in five shelters in the City was to be set
aside for persons with HIV Related Disease and other
homeless individuals in a frail condition. The rooms in
these shelters would be "dormitory" style, with up to twelve
persons in a room. No individual with an HIV Related Disease
would be required to reside in such space, but anyone
seeking admission would be required to submit to a skin test
and X-ray for TB. Persons shown to have infectious TB would
not be admitted to the program, but rather would be referred
to a hospital.  However, it was established at trial that
the skin test and X-ray cannot always determine the
existence of active TB in a person with an HIV infection be-
cause of the manner in which the body's immune system is
damaged. This is especially so with respect to persons with
multiple drug resistant TB, a condition prevalent among many
homeless persons who have failed to complete a prior
prescribed regimen of drug treatment for TB.  Tests to
determine whether a person has multiple drug resistant TB
can take several months.

Persons admitted to the CCP program would still share common
eating and communal facilities with other residents of the
shelter, but would have enhanced nutrition and special
social services. A medical clinic open 7 days a week, 8
hours a day, would be established in each of the CCP
shelters, with a physician to be available 20 hours per
week.  The City points out that by having similarly ill
persons together, the residents can be monitored daily to
see that prescribed medication is taken,
and that this is preferable to placing such homeless persons
in apartments or SRO rooms where regular contact with needed
medical care is less likely to be maintained.

Although the program is stated to be "temporary", the City
acknowledges that "at the present time it is not practicable
to create enough supportive apartment programs and
supportive SROs to house and service all such persons in non-
shelter based settings, as there is no prospect of enough
such housing in the near future for which all or most of the
HIV positive symptomatic clients would be suitable". (City's
post-trial brief, p. 57).

In moving for dismissal the City argues that its
determination to provide noncongregate housing to homeless
persons with AIDS is a rational means of allocating scarce
resources among the many homeless persons seeking public
assistance.  In support of its legal position that the court
should not enjoin the implementation of the CCP, the City
maintains that the "opinions of medical professionals
entrusted by law with determining medical questions on
public safety and the control of infectious disease, if
rational, are entitled to prevail over contrary professional
opinions on such medical issues" (City's supplemental post-
trial memorandum of law, p. 4).

The obligation of the City to provide shelter to the
homeless emanates from the consent decree dated August 26,
1981 in the case of Callahan v. Carey (N.Y. Co. Index No.
42582/79), in which the City agreed to provide emergency
shelter to homeless men.  In Eldredge v. Koch, 98 A.D.2d
675, 469 N.Y.S.2d 744 (1st Dept. 1983), the obligation was
extended to women, the court ruling that "homeless women are
constitutionally entitled to treatment equal to that
accorded to homeless men" and finally in Mc Cain v. Koch, 70
N.Y.2d 109, 517 N.Y.S.2d 918, 511 N.E.2d 62 (1987), the
right to emergency housing for families was recognized, as
was the duty of a court to see that when government provides
housing that it satisfy "minimum standards of sanitation,
safety and decency" (p. 113-114, 517 N.Y.S.2d 918, 511
N.E.2d 62), and be "minimally habitable" (p. 118, 517
N.Y.S.2d 918, 511 N.E.2d 62). In Barnes v. Koch, 136 Misc.2d
96, 518 N.Y.S.2d 539 (Sup.Ct.N.Y.Co., 1987), it was stated
that entitlement to shelter "necessarily includes the right
to be sheltered free of potentially  significant health
threats" (p. 101, 518 N.Y.S.2d 539). Thus, it can be seen
that the current provisions for housing the homeless
resulted not from initiatives of the executive or
legislature, but rather are the results of litigation.



[I]  It is true, as argued by the City, that when a
regulation is adopted by physicians responsible for public
health, the regulation must, unless irrational, be upheld by
the courts which should not determine which of conflicting
medical opinions is cor rect. Thus, following this
principle, in Chiropractic Association of New York, Inc. v.
Hilleboe, 12 N.Y.2d 109, 237 N.Y.S.2d 289, 187 N.E.2d 756
(1962), a challenge to a Health Department regulation
limiting the persons who may apply radiation to a hu man was
rejected; in Grossman v. Baumgartner, 17 N.Y.2d 345, 271
N.Y.S.2d 195, 218 N.E.2d 259 (1966), a regulation
prohibiting tatooing by non-licensed medical personnel was
upheld; and in New York State Society of Surgeons v.
Axelrod, 77 N.Y.2d 677, 569 N.Y.S.2d 922, 572 N.E.2d 605
(1991), the decision of the State Health Commissioner to not
include HIV infection on the lists of communicable and
sexually transmitted diseases was found to have a rational
basis.

But what the court is dealing with here is the adoption by
the City Department of Human Resources, acting with the
assistance and advice of medical personnel, of a compromise
practical solution to a complex societal problem. There is
no doubt that a resolution providing each person suffering
from an HIV Related Disease with an individual room would be
a preferable medical solution, although City physicians
would urge that said rooms be in a single building or
complex so that the medical staff could insure that the
residents follow the prescribed regimen of drugs. However,
as noted above, the City contends that such program is not
feasible at this time due to the lack of sufficient housing.

[2]  Although such a program of individual housing would be
the most desirable and create the least risk to HIV infected
persons of coming in contact with others with infectious
diseases, government cannot be required to provide an
optimal solution.  A rational result, considering all of the
circumstances, is what is required.  I find after this
lengthy trial, at which conflicting medical opinions were
offered together with voluminous exhibits, that a program
that can place as many as twelve persons with weakened
immune systems in a single room lacks a rational basis. As
indicated above, admission tests to the program cannot
reliably determine promptly whether a person is suffering
from multiple drug resistant TB, which disease has reached
near epidemic proportions among the homeless who are HIV
infected. Thus, a person may be in the program for months
spreading the disease before the infectious nature of the
illness is medically determined. This is also true of other
infectious diseases.

In New York State Inspection, Security and Law Enforcement
Employees v. Cuomo, 64 N.Y.2d 233, 485 N.Y.S.2d 719, 475
N.E.2d 90 (1984), the court stated (pp. 239-240, 485
N.Y.S.2d 719, 475 N.E.2d 90):

"While it is within the power of the judiciary to declare
the vested rights of a specifically protected class of
individuals, in a fashion recognized by statute the manner
by which the State addresses complex societal and
governmental issues is a subject left to the discretion of
the political branches of government...

Where, as here, policy matters have demonstrably and
textually been committed to a coordinate, political branch
of government, any consideration of such matters by a branch
or body other than that in which the power expressly is
reposed would, absent extraordinary or emergency
circumstances ..., constitute an ultra vires act."
(emphasis supplied)

In Love v. Koch, 161 A.D.2d 209, 554 N.Y.S.2d 595 (1st Dept.
1990), where the plaintiffs were mentally ill homeless
persons not in need of hospitalization, but who were seeking
residential care from the City, the court, in affirming my
order denying a dismissal of the complaint, quoted the above
but concluded that the "matter may well constitute such
extraordinary or emergency circumstances.'"

I find based on the testimony at trial that there are indeed
"emergency  circumstances" presented by the unfortunate fate
of the plaintiffs who have no home and face an uncertain
future as a result of being infected with an illness that
regrettably still is not fully understood.  Accordingly,
although I can find no basis to direct the plaintiff class
be provided the same shelter and other benefits the City
provides CDC defined AIDS patients, I conclude that under
the circumstances it would be irrational to place more than
four persons of the plaintiff class in one room, whether it
be in the CCP or other facility. Further, beds in the room
should never be less than eight feet apart.  Crucial to the
appropriateness of such living arrangements is that the
ventilation be adequate for the medical needs of the
residents. Since I am unable to state any rules for
determining such adequacy, the judgment to be settled here-on
should order that the housing to be provided to plaintiffs
contain adequate ventilation, with the adequacy to be
certified by the City Commissioner of Health, employing
recognized standards appropriate to the illness of the
residents.  Finally, arrangements should be made for persons
in the program to have the option to eat and have bathroom
facilities separate from the general population of the
facility.

Declarations and relief sought in the complaint not herein
granted are denied and the claims dismissed.