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Decision No. 16,172

Appeal of N.C., on behalf of her daughter V.C., from action of the New York City Department of Education regarding immunization.

Decision No. 16,172

(November 30, 2010)

Advocates for Children of New York, Inc., attorneys for petitioner, Allison Guttu, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent, David A. Rosinus, Jr., Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) that her daughter is not entitled to a medical exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

PHL §2164 generally requires that children between the ages of two months and eighteen years be immunized against certain diseases and provides that children may not attend school in the absence of acceptable evidence that they have been immunized.

The law provides two exceptions to immunization.  Immunization is not required if the parent holds genuine and sincere religious beliefs contrary to immunization (PHL §2164[9]) or if a licensed physician certifies that immunization may be detrimental to a child’s health (PHL §2164[8]).  It is the second exception that is at issue in this case.

The record indicates that petitioner suffers from a rare form of non-Hodgkin’s lymphoma triggered by varicella (chicken pox).  During the 2009-2010 school year, petitioner’s daughter, V.C., attended fourth grade at P.S. 69 in respondent’s district, where she has attended school since first grade.  Prior to the 2009-2010 school year, respondent granted petitioner’s requests for medical exemptions for V.C. on the grounds that petitioner’s health could be at risk if V.C. receives the varicella vaccine.

In January 2010, petitioner again requested an exemption from the varicella vaccine by submitting a “Medical Request for Immunization Exemption” form (“form”) which contained the following language:  “I request that this student be excused from having the following required immunization(s) and certify that the particular immunization(s) may be detrimental to the child’s health.”  V.C.’s pediatrician wrote “Varicella” on the line provided under this form language and included the following hand-written statement on the form:  “[N.C.] has a life long medical condition.  She is on daily medications which [are] compromising her immune system.  Her health may be in jeopardy if [V.C.] receives the live [varicella vaccine] and contracts a rash.”

In her petition, N.C. also alleges that, because her lymphoma “may be hereditary,” receiving the varicella vaccine could also be detrimental to V.C.’s health.  To support her position, petitioner contends that the Centers for Disease Control’s (“CDC”) Advisory Committee on Immunization Practices (“ACIP”) has stated that the varicella vaccine “should not be administered to persons who have a family history of congenital or hereditary immunodeficiency in first-degree relatives (e.g., parents and siblings) unless the immune competence of the potential vaccine recipient has been clinically substantiated or verified by a laboratory.”

The record contains an affidavit from Dr. Roger Platt, Chief Executive Officer of respondent’s Office of School Health (“OSH”), who oversees respondent’s review of medical exemption requests.  Dr. Platt explains that, pursuant to respondent’s policy, petitioner’s January 2010 request was reviewed by OSH’s Supervising Medical Doctor (“supervising doctor”).  As part of this review, the supervising doctor consulted the CDC’s 2009 “Guide to Contraindications and Precautions to Immunization,” which advises that, although “known altered immunodeficiency” is a contraindication to receiving the varicella vaccine, “family history of immuno-deficiency” was a “precaution” that “should be reviewed carefully.”  According to Dr. Platt, the CDC advises that “[t]he benefits and risks of administering a specific vaccine to a person under the circumstances should be considered.”

Dr. Platt further explains that petitioner presented no evidence of “hereditary immunodeficiency in this family”[1] or that V.C. has a “known altered immunodeficiency.”  According to Dr. Platt, OSH found no “evidence in the medical literature to support petitioner’s position that either petitioner would be harmed if the Student were to receive the varicella vaccine, or that the Student may be genetically predisposed to the lymphoma and therefore that it is dangerous for the Student to be vaccinated.”

Based on this review, OSH denied petitioner’s request for a medical exemption by letter dated March 17, 2010.  The letter informed petitioner that she could appeal this decision by providing additional documentation within 10 days, that any such appeal would be “reviewed by [respondent’s] Medical Director, in consultation with the Bureau of Immunization,” and that “[a]ll decisions will be final.”  The record also indicates that, pursuant to Chancellor’s Regulation A-701(III)(A)(4)(c), “Exclusions [D]uring Outbreaks of Diseases Preventable by Vaccination,” V.C. was excluded from school from March 17 through 26, 2010 due to a chicken pox outbreak at her school.

Petitioner appealed OSH’s determination.  According to Dr. Platt, on March 29, 2010, the supervising doctor spoke with V.C.’s pediatrician, who explained that petitioner’s “request for the immunization exemption was based on the fact that petitioner’s health is at risk were [V.C.] to be immunized with the varicella vaccine.”  V.C.’s pediatrician also submitted an article stating that “[t]here may be kids with genetic predispositions or other underlying conditions that make them susceptible to being harmed by vaccines.”

Also on March 29, 2010, the supervising doctor spoke with an oncologist who authored an October 31, 2008 letter stating that petitioner is “recommended to avoid close contact with individuals receiving a live varicella vaccine.”[2]  According to Dr. Platt, the oncologist stated that, since writing the October 2008 letter, he has “changed his position” and now recommends that V.C. receive the varicella vaccine as it is “safer for petitioner to be exposed to a vaccinated contact than to a wild case of varicella.”

The record indicates that, due to another chicken pox outbreak, V.C. was excluded from school from May 24 through June 4, 2010.  On or about May 26, 2010, respondent’s medical director (“director”) wrote to a doctor in V.C.’s pediatrician’s office “in reference to your appeal request for [V.C.].”  The director stated that the exemption request was denied and that V.C. would be excluded from school if she was not vaccinated “within the next 10 school days.”  The director explained that the documentation submitted by petitioner “is not consistent with national guidelines for acceptable vaccination contraindications.”[3]  The director also stated that the oncologist who wrote the October 2008 letter confirmed that “he no longer agrees that varicella vaccination would pose and undue risk to” petitioner and that there is “no contraindication to vaccinating [V.C.] against varicella.”  Petitioner was copied on this letter and admits that she received it in an envelope postmarked June 2, 2010.

Thereafter, the director received a letter dated June 9, 2010 from V.C.’s pediatric oncologist, which stated:

The mother [N.C.] of the abovementioned patient, [V.C.], has a history of rare non-Hodgkins [sic] lymphoma triggered by varicella.  Genetic line and transmission is unproven.  Still, requiring this child to receive the varicella vaccination could result in a life-threatening situation.  She is up-to-date with all other immunizations.  Therefore knowing the serious possible consequences of varicella exposure/immunization, [V.C.] should be exempt from receiving the varicella immunization.

The record indicates that V.C. was excluded from school from June 11 through June 28, 2010.  In its verified answer, respondent explains that this exclusion was based on petitioner’s “failure to comply with the immunization requirements.”[4] 

On or about June 17, 2010, petitioner received a “Notice of Exclusion from School Due to Incomplete Immunization” stating that V.C. would be excluded from school after that date if she did not receive the varicella vaccination.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 10, 2010.

Petitioner argues that respondent’s determination that V.C. is not entitled to a medical exemption from the varicella vaccine was arbitrary and capricious.  Petitioner also contends that V.C.’s June 2010 exclusion from school occurred without proper notice in violation of Chancellor’s Regulation A-701(III)(2)(a).

Respondent asserts that it fully complied with PHL and DOH regulations in rejecting petitioner’s request for a medical exemption and denies that its actions were arbitrary or capricious.

Initially, I must address two procedural issues.  Respondent objects to petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Petitioner objects to respondent’s October 21, 2010 request to submit a “supplemental affidavit” from Dr. Platt pursuant to §276.5 of the Commissioner’s regulations.  Since the supplemental affidavit concerns events that occurred before submission of respondent’s answer (which included Dr. Platt’s August 2010 affidavit), and respondent offers no explanation why such information could not have been submitted with the answer, permission to submit the supplemental affidavit is denied (Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050).

Turning to the merits, PHL §2164(8) specifically provides:

If any physician licensed to practice medicine in this state certifies that such immunization may be detrimental to a child’s health, the requirements of this section shall be inapplicable until such immunization is found no longer to be detrimental to the child’s health.

In addition, New York State Department of Health (“DOH”) regulations require that no child shall be admitted to school without a certification of immunization or:

[A] certificate from a physician, licensed to practice medicine in this State, that one or more of the required immunizations may be detrimental to the child’s health.  This certificate must specify which immunizations may be detrimental (10 NYCRR §66-1.3[c]).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner contends that respondent excluded V.C. from school in June 2010 without proper notice that V.C. would be “excluded within 14 days if no additional immunization documentation was received” in violation of Chancellor’s Regulation A-701(III)(A)(2)(a).  However, this provision does not apply to the facts of petitioner’s case.  Instead, Chancellor’s Regulation A-701(III)(A)(2)(a) relates to “Provisional Immunization Requirements for New Entrants.”  The record before me indicates that V.C. was not a “new entrant” to respondent’s schools, which she has attended since first grade.  Rather, petitioner’s January 2010 request appears to have been a request to renew V.C.’s 2008-2009 medical exemption.  Such renewals are governed by Chancellor’s Regulation A-701(III)(A)(4)(a), “Exemptions from Immunization Requirements:  Medical Exemptions,” which requires that medical exemptions “be renewed at the start of each school year.”  However, unlike the provision cited by petitioner, Chancellor’s Regulation A-701(III)(A)(4)(a) contains no time frame within which respondent must respond to such renewal requests and no requirements and/or time frames relating to the exclusion of students from school while a renewal request is being considered or once such request has been denied.  As a result, I must conclude that petitioner has not carried her burden with respect to this claim.

Nevertheless, in its May 26, 2010 final decision letter, respondent specifically advised petitioner that V.C. would be excluded from school if documentation of proper immunization was not provided “within the next 10 school days.”  Petitioner admits that she received such letter in an envelope postmarked June 2, 2010.  Where the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).  Therefore, the date of receipt of respondent’s May 26, 2010 letter would be June 2, 2010.  By excluding V.C. from school on June 11, 2010, respondent failed to comply with the timeline set forth in its May 26, 2010 letter.  I therefore remind respondent to comply with its policies and procedures, as well as with all information provided to parents, when handling requests for immunization exemptions.[5]

Petitioner contends that V.C. is entitled to a medical exemption because the doctors’ certificates she has obtained comply with the requirements of PHL §2164(8).  Petitioner further asserts that “additional medical evidence supporting [such letters] was irrelevant to [respondent’s] decision; the sole requirement was that the physician’s letter comported with the statutory language regarding the effects of the immunization on the child’s health.” 

To the contrary, respondent argues that petitioner’s submissions failed to demonstrate that the varicella vaccine could be detrimental to V.C.’s health and that “further inquiry of additional medical evidence is both relevant and often required during the medical exemption request process.”  To support its position, respondent relies on Supreme Court, Rockland County’s decision in Lynch v. Clarkstown Cent. School Dist. (155 Misc 2d 846).  In that case, petitioners sought a medical exemption from immunization for their daughter, who suffered from Rett Syndrome.  Petitioners submitted a certificate from a doctor stating that “all vaccinations are contraindicated indefinitely.”  Prior to denying their request, the school district consulted with its Chief Medical Officer, who reviewed the medical research on Rett Syndrome and consulted with the doctor who wrote the certificate (a specialist in “ecology”).  The medical officer also conferred with specialists in pediatric neurology who concluded that “there were no reasons not to immunize a child with Rett Syndrome.”

The court ruled that the district did not act arbitrarily and capriciously in denying petitioners’ request, stating:

The court rejects petitioners’ argument that the District was required to accept the [doctor’s] note at face value, without further investigation.  At that stage, the District was following the regulation promulgated by the State Department of Health ... as outlined in an internal memorandum prepared by its general counsel.  That memorandum reviewed a letter to school officials, which provided guidelines for interpreting physician statements submitted in support of a medical exemption to immunization.  The memorandum advises that a “health provider’s statement that administration of vaccine [sic] is medically contraindicated for non-specific reasons is not sufficient to serve as a medical exemption.”  The memorandum further states, “the medical exemption under P.H.L. section 2164 is available only when a vaccination would actually be detrimental to a student’s health during that period and not because the student has a note from a physician excusing the student from immunization.  A medical certification must, therefore, contain sufficient information to identify the contraindication to immunization and identify the time at which vaccination would no longer be detrimental” (Lynch v. Clarkstown Cent. School Dist., 155 Misc 2d 846, 851).

Respondent also cites Appeal of McGann (32 Ed Dept Rep 187, Decision No. 12,800), in which petitioner requested a medical exemption based on a written statement from her child’s doctor that “immunizations would be harmful to the ... child’s health.  This includes MMR, DPT, Polio and HIB.”  Respondent asked the physician to explain why the child could not be vaccinated, but neither the physician nor petitioner responded.  Respondent then contacted DOH for further information, and was advised by DOH’s General Counsel and Director of General Communicable Disease Activities that “without a specific explanation of harmful effects, the district should refuse to allow the student to continue to attend school until immunized.”  The Commissioner found that respondent was within its rights “to demand additional information to ascertain why all immunizations would be detrimental, and to deny the exemption when no additional information was forthcoming.”

Moreover, as noted by respondent, petitioner’s reliance on Appeal of M.E.F. (43 Ed Dept Rep 248, Decision No. 14,987) is misplaced.  In that case, respondent denied petitioner’s request for a medical exemption based only on an oral statement of a DOH employee. Although that appeal was sustained, the Commissioner stated:

[A]n oral statement of a DOH employee, without more, is an insufficient reason to reject petitioner’s request for a medical exemption.  There is no evidence in the record regarding the basis for or accuracy of DOH’s assessment.  In contrast to the situation in McGann, there is nothing in this record indicating that respondent had a written determination or sought further information in writing from DOH or medical experts (seee.g., Lynch v. Clarkstown CSD, 155 Misc 2d 846).

Under these circumstances, the Commissioner found that the school district “acted arbitrarily in refusing the exemption without further inquiry.”

In the instant appeal, petitioner has produced letters from several doctors in support of her request, including a June 23, 2010 letter from her oncologist stating that:

[P]atients with non-Hodgkin’s lymphomas may be immunosuppressed, and they may develop symptomatic infections following exposure to live viral vaccine.  Persons receiving the live, attenuated varicella vaccine may shed virus for 7-21 days, and an infection with attenuated varicella virus in an immunosuppressed patient may cause a life threatening illness.  I suggest that you consider the risk of serious illness in family members of vaccinated children....

Petitioner has also produced a July 15, 2010 letter from V.C.’s pediatrician stating that if V.C. “receives the LIVE [varicella vaccine] and contracts a rash from the vaccine, it could be detrimental to her mother who lives in the same house” (emphasis in original).  I note in this regard, however, that PHL §2164(8) requires a showing that the vaccination would be detrimental to the health of the child.

The record indicates that petitioner’s renewal request was reviewed not only by respondent’s supervising doctor and medical director, but also by Dr. Platt.  Specifically, in line with DOH regulations and guidance, respondent reviewed medical research and petitioner’s submissions and requested additional information from petitioner and several doctors in order to determine whether the varicella vaccine could be detrimental to V.C.’s health.

Petitioner alleges that respondent never contacted V.C.’s primary pediatrician or pediatric oncologist to “discuss the risks to [V.C.’s] health if she received the varicella vaccine.”  However, in addition to Dr. Platt’s statements to the contrary, the record also contains a June 30, 2010 letter from the supervising doctor to respondent’s Health Director memorializing the former’s conversation with V.C.’s primary pediatrician.  Moreover, Dr. Platt’s affidavit explains that, in response to the pediatric oncologist’s June 9, 2010 letter, the medical director contacted her to request a “copy of any medical literature that [she] relied upon in reaching her recommendation.”  During this conversation, the pediatric oncologist explained that there is “no literature for or against genetic inheritance of petitioner’s rare form of non-Hogdkin’s lymphoma, however [the pediatric oncologist] could not definitively say that the varicella vaccine would pose no risk to [V.C.].”  Other than her conclusory statement, petitioner submits no evidence to support her claim or otherwise rebut the evidence produced by respondent.

Based on its research and consultation, respondent concluded that “neither petitioner, nor any of her doctors, nor any of [V.C.’s] doctors, were able to provide any medical evidence to suggest that [V.C.’s] health would be at risk were she to receive the varicella immunization.”  For example, the June 9, 2010 letter states only that “[g]enetic line and transmission is unproven” and that requiring V.C. to receive the varicella vaccine “could” result in “a life-threatening situation.”  Notably, however, the letter does not go so far as to state that receiving the varicella vaccination could be detrimental to V.C.’s health.

While I am sympathetic to petitioner’s personal health issues, PHL §2164(8) requires evidence that immunization would be detrimental to the child.  Such evidence is lacking in this record.  Accordingly, under the circumstances presented in this case, I am constrained to find that respondent’s denial of petitioner’s request for a medical exemption pursuant to PHL §2164(8) was not arbitrary or capricious.

THE APPEAL IS DISMISSED.

END OF FILE.

[1] Petitioner’s attorney has submitted an affirmation in support of petitioner’s memorandum of law in which she describes an August 27, 2010 telephone conversation with petitioner’s oncologist, who stated that “hereditary immunodeficiency can manifest and be detected much later than early childhood.”  However, similar to his June 23, 2010 letter (discussed below), there is no indication that the oncologist made any statement certifying that the varicella vaccine poses a risk to V.C.’s own health.

[2] In her verified reply, petitioner asserts that the oncologist who wrote the October 31, 2008 letter “is not [petitioner’s] physician.”  In her memorandum of law, petitioner further asserts that “[t]here is no indication that [the oncologist] is aware of current information regarding petitioner and her daughter’s reasons for exemption....”

[3] According to Dr. Platt, it is “OSH’s position to deny an exemption request in circumstances where a physician recommends an exemption based on a reason that conflicts with current national recommendations.”

[4] Contrary to the assertion in its verified answer, respondent states in its memorandum of law that V.C. was excluded from school from June 11 through June 28, 2010 “because of a second varicella outbreak....”  I note that respondent’s memorandum of law is not verified.  Moreover, in her verified reply, petitioner denies that V.C.’s June 11 exclusion was the result of a chicken pox outbreak.  Rather, consistent with respondent’s verified answer, petitioner contends that she was informed that V.C. had been excluded due to “lack of vaccination.”

[5] I note that, subsequent to the May 26, 2010 final determination letter, respondent also provided petitioner with a “Notice of Exclusion from School Due to Incomplete Immunization” dated June 17, 2010.  Because this could easily cause confusion among parents, I encourage respondent to clarify its communications surrounding immunizations in response to the concerns raised in this appeal.