New York State Society of Surgeons v. Axelrod, 572 N.E.2d 605 (N.Y. 1991)

Several medical organizations brought an Article 78 proceeding to compel the Commissioner of Health and the New York State Public Health Council to add HIV infection to lists of communicable and sexually transmissible diseases. The lower court dismissed the petition and the Appellate Division affirmed, holding that the determination of the Commissioner not to add HIV infection to the list, based on concern that mandatory testing and contact tracing would prevent infected persons from cooperating with public health officials, had rational basis. The Court of Appeals affirmed the decision for multiple reasons. First, nowhere in the relevant state law did the language suggest that all diseases had to be included in the list, and the presence of the words “may designate” allows for the Commissioner to exercise discretion. Second, the Commissioner has the authority to exclude HIV infection from the list provided that his discretion has a rational basis. The court notes several facts that support the rational basis of the Commissioner’s decision not to include HIV infection on the list: (1) isolation and quarantine, which are allowed for diseases on the list, would not be appropriate for HIV infection since it is not spread casually, (2) isolation and quarantine would not lead to control and prevention because many persons infected with HIV are asymptomatic for long periods of time and are not tested until symptoms appear, (3) mandatory testing, as allowed for by adding a disease to the list, would be inconsistent with New York State legislation that provides for confidentiality and informed consent with HIV testing, and (4) the Institute of Medicine and the National Academy of Sciences have concluded that mandatory testing is inappropriate, at this stage, to deal with the spread of HIV infection. The court concluded that the Commissioner’s decision not to add HIV infection to the list was therefore rationally based, within reasonable discretion, and within his authority.