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If a state official fails to abide by state law by creating a review board that the law requires what can victims do?

Albany, NY |

NY State Commissioner of the Department of Health has failed to abide by New York Public Health Law (PBH) Article 33-A: Controlled Substances Therapeutic Research Act (http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=@PLPBH0A33-A+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=17350308+&TARGET=VIEW) states that the Commissioner of Health SHALL maintain a "state patient qualification review board" to evaluate each potential patient and condition. The board has not existed since 1989 though this is clearly required by law. When I asked the Commissioner of Heath how to get evaluated by this board, I was told the program was "Administratively" discontinued in 1989. Is this legal to just stop a legally mandated program on a whim without changing the law?

Attorney Answers 5


  1. Interesting question may not be legal but may not have funding. many programs are on the books so to speak but are inoperable due to no funding. Especially in the field of mental health. I don't have a real answer just found this post interesting.


  2. Check with an administrative law attorney in New York.

    My name is Stephen R. Cohen and have practiced since 1974. I practice in Los Angeles and Orange County, CA. These answers do not create an attorney client relationship. My answers may offend I believe in telling the truth, I use common sense as well as the law. Other state's laws may differ.. There are a lot of really good attorneys on this site, I will do limited appearances which are preparation of court documents it is , less expensive. However generally I believe an attorney is better than none.


  3. Who says it was stopped on a whim?

    R. Jason de Groot, Esq.,


  4. As a former attorney who worked in the US House of Representatives and as counsel to New York Governors, I also find your question interesting. Without knowing anything more than the information you provided us with, laws are enacted and authorize the expenditure of money to fund a program. However, not all authorized programs receive funding by an appropriation to fund it. Only the non-discretionary entitlement programs must be funded, ie. Medicare.


  5. You should speak with an attorney that practices administrative law in New York.

    For generations, equity allowed individuals to sue for a writ (a court order) of mandamus. Such orders are directed to government officials and compel those officials to undertake action required by law, when such actions are not discretionary acts but mandatory ones.

    In the case of this statute, the language in mandatory ("Shall") and the statute does not indicate that the Commissioner can CHOOSE to appoint such a panel or not to do so. New York may have consolidated its equity courts and its law courts and it may have combined all kinds of causes of action into a single action called a complaint. But it remains likely that your state courts are available to provide orders akin to writs of mandamus.

    New York counsel should be able to advise you on this point.

    This answer is not a substitute for consulting with and retaining the services of an attorney for your legal needs. By providing this answer, I am not entering into an attorney client relationship with you.

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