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Decision No. 16,415

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the New York City Department of Education regarding immunization.

Decision No. 16,415

(September 24, 2012)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Lesley Berson Mbaye, Esq., of counsel

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

According to respondent, DOE’s committee on preschool special education (“CPSE”) first evaluated the student on March 4, 2010, when he was 33 months old.  The CPSE classified the student as a preschool student with a disability and recommended that he attend a full-day, twelve-month program at Stepping Stone Day School (“Stepping Stone”) in a special classroom with a ratio of 12:1:2 (twelve students, one teacher, and two teacher aides) with related services.  According to respondent, Stepping Stone is a private pre-kindergarten program.  On March 15, 2011, the CPSE evaluated the student’s progress and recommended that he continue his program at Stepping Stone with the addition of five hours of one-to-one Special Education Itinerant Teacher (“SEIT”) services at home.

On March 2, 2012, petitioner submitted a “Medical Request for Immunization Exemption” form (“request”) signed by the student’s pediatrician requesting an exemption from all immunizations.  The pediatrician stated on the form that:

3 mos of age received DTaP – within 24-48 hrs fever to 104.8 assoc. with local redness/swelling and depressed attitude.  Similar reaction to other vaccines (DTPed).  Per Neurology, no further vaccination is recommended at this time [] possible detrimental effects.

It is unclear from the record to whom petitioner submitted the request.  Nonetheless, respondent admits that the New York City Office of School Health (“OSH”) received petitioner’s request on or about March 5, 2012.  Pursuant to Chancellor’s Regulations, of which I take judicial notice, OSH is a joint program of DOE and the New York City Department of Health and Mental Hygiene (“DOHMH”) that is responsible for, among other things, reviewing requests for exemptions from immunization (see Chancellor’s Regulation A-701[I][A][3]).  Respondent states that petitioner’s request was forwarded from OSH to DOHMH’s Bureau of Immunization (“Bureau”), which is not affiliated with DOE, because the student was enrolled in a private school, rather than a public school, and therefore the request was considered outside OSH’s jurisdiction.

By letter dated March 23, 2012, the Bureau’s assistant commissioner notified an individual at DOE[1]  that a medical exemption for the student from the DTaP vaccine was appropriate for the 2011-2012 school year.  However, the assistant commissioner also stated:

[t]he child should complete the vaccine series using DT vaccine.  The information provided does not support that immunizing this child with MMR, varicella or hepatitis B vaccines may be detrimental to this child’s health and therefore, I do not recommend the approval of the medical exemption requests for these 3 vaccines for the 2011-2012 school year.

The assistant commissioner stated that she made this recommendation after reviewing documentation submitted by the student’s pediatrician and another physician and speaking with both physicians.[2] This appeal ensued.

In the petition, petitioner describes the student’s medical history and provides letters from his pediatrician, his pediatric neurologist, and his treating physician from Autism Associates of New York.  Petitioner contends that the student cannot attend any NYC DOE public school and will not receive the special education services to which he is entitled unless he receives full approval of the medical request for exemption.  She argues that the assistant commissioner did not provide “any information that supports that immunizing [the student] will NOT be detrimental to his health and well-being.”  Petitioner seeks approval of her request to enable the student to attend any NYC DOE public school that has a seat available for him.

Respondent contends that petitioner lacks standing and that I lack subject matter jurisdiction over petitioner’s claim because she has not been aggrieved by, and does not challenge, any act or decision of the DOE.  Respondent also asserts that the petition fails to state a cause of action and that the appeal is premature.

I must first address several procedural issues.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).

In this case, respondent’s affidavit of service indicates that the answer was served by mail on May 21, 2012.  Thus, petitioner’s reply was due on June 4, 2012.  Petitioner did not serve her reply until June 6, 2012 and requested at the time of submission that I excuse her delay because of family health and employment issues.  Although petitioner offers an excuse for her delay, I do not find such excuse compelling.  Accordingly, I decline to accept the reply. 

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.

PHL §2164(6) provides in part:

In the event that a person in parental relation to a child makes application for admission of such child to a school or has a child attending school and there exists no certificate or other acceptable evidence of the child's immunization ... the principal, teacher, owner or person in charge of the school shall inform such person of the necessity to have the child immunized ... (emphasis added)

PHL §2164(7) provides in part:

(a) No principal, teacher, owner or person in charge of a school shall permit any child to be admitted to such school, or to attend such school, in excess of fourteen days, without ... acceptable evidence of the child's [3] immunization ...(emphasis added)

(b) A parent, a guardian or any other person in parental relationship to a child denied school entrance or attendance may appeal by petition to the commissioner of education in accordance with the provisions of section three hundred ten of the education law (emphasis added).

Further, PHL §2164(8) 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 provide that:

[a] principal or person in charge of a school shall not permit a child to be admitted to such school unless a person in parental relation to the child has furnished the school with ... [a certificate of immunization or] 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]) (emphasis added).

The Chancellor’s Regulation adopts the requirements of PHL §2164 (see Chancellor’s Regulation A-701).  In particular, A-701(III)(a)(II)(a) provides in part:

2. Provisional Immunization Requirements for New Entrants

a. New entrants may register but may not attend school unless they provide documentation that they meet the provisional immunization requirements set forth at http://schools.nyc.gov/Offices/Health/ImmunizationInfo/default. When a student does not meet immunization requirements for school attendance, the principal/designee must inform the parents that their child will be excluded from school if he/she does not present documentation of additional immunizations within 14 days of notification.  A warning letter must be sent to the parents informing them of this requirement. If the documentation is not received in the required 14 day time period, the principal must send the parent a written notice of exclusion from school (emphasis added).

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).

The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).

Petitioner presents no evidence demonstrating that she has received any written notice or determination from respondent that the student was denied admission to, or was excluded from, respondent’s schools (see Chancellor’s Regulation A-701[III][a][II][a]).  To the extent petitioner relies on the recommendations of the Bureau’s assistant commissioner, the record contains no evidence that a determination regarding the student’s enrollment in respondent’s schools or any other action was taken by respondent based on such recommendations.   Thus, petitioner has not demonstrated that she is aggrieved by any action of respondent and instead is seeking an advisory opinion on an issue that is not yet justiciable.  Accordingly, the appeal must be dismissed as premature.

In light of this determination, I need not consider the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE.

[1] The letter is addressed to David Erdil, DATA/IT, New York City Department of Education.

[2] Petitioner submits with her petition letters from three physicians, including the two mentioned by the assistant commissioner.  It is unclear from the record, however, precisely what documents the assistant commissioner reviewed because there were no attachments to the request submitted with the petition.

[3] I note that the assistant commissioner’s March 23, 2012 letter recommended actions for the 2011-2012 school year.