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June 12, 1973

John V. LINDSAY et al., Defendants, Committee for Better Health Services on the Lower East Side, Plaintiff-Intervenor

Gurfein, District Judge.

The opinion of the court was delivered by: GURFEIN

GURFEIN, District Judge.

This is an action which seeks, inter alia, declaratory and injunctive relief against the Secretary of Health, Education and Welfare ("the Secretary" or "HEW"), the Mayor of the City of New York, the Chairman of the Comprehensive Health Planning Agency of the City ("City Agency"), the Chairman and the Executive Secretary of the New York State Health Planning Commission ("State Commission"). The issues raised by the plaintiffs concern Federal grants made to the City Agency which was established by Executive Order of the Mayor effective October 1, 1971. Relief is sought on the theory that the claim arises under the Federal legislation governing areawide comprehensive health planning, § 314(b) of the Public Health Service Act, 42 U.S.C. § 246(b), and a grant application executed pursuant thereto.

 The plaintiffs are ten individuals and (including the plaintiff-intervenor) six community organizations. Five of the individual plaintiffs are chairmen of groups that have sought to become local comprehensive health planning district boards under the City Agency. The community organization plaintiffs are local membership groups interested in the planning of health services. No class action is alleged. The plaintiffs allege that the City defendants have violated the governing Federal statute, 42 U.S.C. § 246(b) as well as the grant application executed by them, and that the State and Federal defendants have failed and refused to carry out their duty to enforce the statute and the obligations represented by the grant application.

 To understand the specific complaints some history must be reviewed. In 1966 the Congress provided for Federal financial assistance to be granted to State and areawide comprehensive health planning agencies. *fn1" By the Partnership for Health Amendments of 1967 and by the Public Health Services Amendments of 1970, its life was extended through 1973.

 Federal funding was offered to spur coordinated and flexible planning of health resources. Areawide agencies, as distinguished from the statewide health planning agencies, were provided for, 42 U.S.C. § 246(b), because project grants to such agencies "would stimulate the development of essential planning activities in areas where the need is very great." House Report No. 2271, 89th Cong. 2d Sess., 1966 U.S. Code Cong. and Adm. News, p. 3833. The legislation envisaged participation by local government and voluntary health organizations. See Senate Report No. 274, 90th Cong. 1st Sess., 1967 U.S. Code Cong. and Adm. News, pp. 2079-2080.

 In 1970 it was provided that consumers of health services shall constitute a majority of the areawide health planning council which was mandated by statute. 42 U.S.C. § 246(b)(2)(A). The area council advises the area agency on local health programs.

 The City Government early sought to take advantage of the federal funding. On March 29, 1971 the Mayor's Organizational Task Force for Comprehensive Health Planning (MOTF) which had been created by the Mayor's Executive Order in 1969, submitted a grant application to the State for ultimate submission to the Secretary for the purpose of funding the area agency to be created. Since the statute required "reasonable assurances" that there would be created an areawide health planning council, the grant application contained the assurance that the board of directors of the City Agency to be created would act as such council in the manner prescribed. But the grant application went further and stated that there would be established district planning councils (District Boards) and that during the process of delineating 33 proposed Local District Boards, public hearings would be held.

 An organizational grant was awarded to MOTF by the Secretary in July 1971 for the organization of the appropriate areawide agency. No operational grant was made for that year. The 71 members of the board of MOTF became members of the board of the City Agency which was created by the Executive Order of the Mayor of August 30, 1971, referred to above. Executive Order No. 48, Establishment of Comprehensive Health Planning Agency for the City of New York.

 Before this Executive Order was promulgated, MOTF had already established in the Fall of 1970, 8 local experimental planning boards in Harlem, Williamsburg, Bedford-Stuyvesant, the lower East Side, the North Bronx, Far Rockaway, Northwest Queens and East Harlem. These neighborhoods are poor neighborhoods. The experimental boards banded together as the "New York City Coalition for Community Health," ("the Coalition") which is now one of the plaintiffs. The Coalition allegedly tried to participate in the decision making process of MOTF, the City defendants and HEW allegedly to no avail. When, in July 1971, MOTF's grant application was approved, all the local experimental boards were officially terminated by the City defendants. The individual plaintiffs who had been chairmen of two of the Local Boards were not elected to the new board of the City Agency.

 The City Agency received an operational grant in its second year.

 With this background, we may now look at the amended complaint. The plaintiffs complain in two categories. The first category is (a) that there is not a consumer majority on the board of directors of the City Agency; (b) that there is frequently no majority of consumers in attendance; (c) that the staff dominates the board; and (d) that the board subordinates its function to the interests of the City Health Services Administration ("HSA," a department of the City Government, the Administrator of which is also the Chairman of the City Agency).

 The second category of complaints is (a) that the City Agency has failed to hold public hearings as promised in its grant application during the process of delineating boundaries for the 33 proposed Local District Boards; (b) that it has failed to date to establish even one of the 33 proposed Local District Boards although its grant application projected formulation of all such Boards by April 1972; (c) that it has failed to perform any of its work programs in various substantive health and health related areas, as projected in its grant application.

 The plaintiffs charge the defendants with having violated their obligations both under the statute and the grant application. The plaintiffs seek declaratory relief to that effect and injunctive relief as well requiring (1) the convening of public hearings in the complaining localities for the purpose of determining appropriate District boundaries; (2) the establishment of Local District Boards throughout the City; (3) the establishment of a consumer majority on the City Agency board of directors; (4) an order that the board of directors conduct business only when there is a majority of consumers actually present; (5) the removal of the City Agency from the control of HSA; (6) the removal of the Health Services Administrator, Gordon Chase, from his position as City Agency Chairman. The plaintiffs also request (7) an accounting of all Federal and Municipal funds received by the City Agency since October 1, 1971; and (8) an order placing the City Agency in receivership.

 The defendants now move to dismiss the complaint on two grounds: (1) that the Court is without jurisdiction over the subject matter; and (2) that the complaint does not state a claim for relief. The City asks for summary judgment in the alternative. The plaintiffs also move for summary judgment on their claim that ...

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