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Decision No. 16,416

Appeal of L.W., on behalf of her daughter M.W., from action of the Board of Education of the Harrison Central School District regarding immunization.

Appeal of L.W., on behalf of her daughter Z.W., from action of the Board of Education of the Harrison Central School District regarding immunization.

Appeal of L.W., on behalf of her son U.W., from action of the Board of Education of the Harrison Central School District regarding immunization.

Decision No. 16,416

(September 21, 2012)

Ingerman Smith, L.L.P., attorneys for respondent, Alessandro Bianchi, Esq., of counsel

KING, JR., Commissioner.--In three separate appeals, petitioner challenges the determinations of the Board of Education of the Harrison Central School District (“respondent”) that her children, M.W., Z.W. and U.W., are not entitled to exemptions from the immunization requirements of Public Health Law (“PHL”) §2164.  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

On or about October 18, 2011, petitioner attempted to enroll her three children in the district’s schools: M.W., born in 2003 (Appeal No. 19,532); Z.W., born in 2001 (Appeal No. 19,533); and U.W., born in 1995 (Appeal No. 19,534).  Petitioner states that her children had previously resided in White Plains for one year and one month.  Upon registering in respondent’s district, petitioner submitted a letter by a physician, dated November 16, 2002, regarding “Baby Girl [W.]” with a birth date in 2001.  Since the letter was nine years old and did not reference a child by name, and petitioner failed to submit any information regarding her other two children, the school registrar referred the issue to the office of respondent’s superintendent.

The superintendent avers that he reviewed the letter with respondent’s attorney, who determined that the physician’s note was insufficient because it was nine years old, only referenced one child, and the medical license of the physician who had written it had been revoked.[1]  The attorney advised the superintendent to request current documentation from a licensed physician.  According to the superintendent, the district informed petitioner of the immunization requirements and asked her to produce current documentation from a licensed physician, but petitioner claimed that she was unable to obtain a current certificate of exemption for the children.  There is no written request from the district or written response in the record.  The superintendent avers further that on or about November 7, 2011, the district contacted the Department of Health to report petitioner’s name and address.

According to the superintendent, in her attempts to enroll her children, petitioner proceeded to contact various school officials, including building principals, respondent’s president and the district’s homeless liaison.[2] By email dated January 4, 2012 to respondent’s president, petitioner requested a “Religious Exemption with Medical Assessment.”  Petitioner stated:

I have legal issue [sic] concerning my children taking immunization and be exposure [sic] to some type [sic] tiny particles that dissolve in skin.  I have been referred by the children [sic] attorney and my attorney to get a medical exemption, which I have contacted all medical Dr. [sic] that could help me toward the matter.  I sent this letter to Washington base [sic] on resloving [sic] the matter due to 20 years of no help [sic].  I hope you and State could come to proper [sic] and safe resolution to the matter.

Respondent’s president forwarded the request to the superintendent.

By letter dated January 18, 2012, the superintendent informed petitioner that:

[w]hile your letter requests an exemption for religious purposes, you continue to present medical concerns as the basis for your request.  As a consequence, the District has treated your request as one for a medical exemption . . . You have failed to provide a certificate or other evidence of your children’s immunizations.

The superintendent explained that petitioner needed to submit a certificate or other evidence of the children’s immunization or pursue either a medical or religious exemption.  The letter provided information on how to do so.  On January 23, 2012, petitioner requested information to home school her children.  These appeals ensued.  Petitioner’s requests for interim relief were denied on February 9, 2012.

Petitioner asserts that she has relied on the 2002 physician’s letter for nine years to exempt Z.W. from immunizations.  She also asserts that M.W. and U.W. have been exempted from immunization for seven and nine years, respectively, based on an Affidavit and Declaration of Vaccination Exemption for each in which she declares them to be “exempted from any and all vaccinations on the grounds that such is contrary to my personal beliefs” (see Exhibit A described below).  She seeks to “return the children back to school due to the medical & legal references and video showing the years of need for medical help.”  She also “demand[s] and request[s] an order for medical report for Environmental biochemical [sic] Exposure Conspiracy.  Immunization shots could cause Death, when mixing unknown substances together.”

Respondent contends that the appeals must be dismissed because petitioner has failed to state a claim upon which relief can be granted.  Respondent asserts that petitioner failed to provide a certificate of immunization or legally sufficient documentation for any of the children justifying a medical exemption from the immunization requirements of the PHL.

I must first address a procedural issue. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).

Respondent requests that I accept a physician’s letter dated February 1, 2012 received by the superintendent.  Since the letter was written and received after submission of respondent’s answer and is relevant to these proceedings, I will accept it.

PHL §2164 generally requires that children between the ages of two months and 18 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]).  Petitioner appears primarily to seek a medical exemption, but also submits documents relating to her personal beliefs.  I will address each exemption separately.

For a medical exemption, 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.

The applicable New York State Department of Health (“DOH”) regulation provides 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 one of the following:

(a) a certificate of immunization ...

...

(c) 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[a] and [c]).

With the petition for M.W., petitioner submits 16 exhibits:

  1. An undated Affidavit and Declaration of Vaccination Exemption, notarized on November 10, 2004, in which petitioner declares “Baby Girl II [W.]” to be “exempted from any and all vaccinations on the grounds that such is contrary to my personal beliefs.”
  2. An October 28, 2011 physician’s letter from Mount Vernon Neighborhood Health Center, Inc., regarding M.W. and Z.W., in which the doctor states that they “have been seen in this clinic for their regular check ups.  The Mother has decided to refuse vaccines for her children and they have received no vaccines at this time.”
  3. Video of Environmental Exposure Conspiracy “that has been ignored over life span.”
  4. An October 16, 2009 letter from the New York State Attorney General’s office referring petitioner to the Westchester County Department of Health.
  5. An undated General Complaint Form from petitioner to the Commissioner of Health, New Rochelle, NY, complaining about environmental issues in her room at the Coachman Inn in White Plains in July 2010.
  6. An August 11, 2010 investigation report from the Westchester County Department of Health.
  7. An August 9, 2010 letter from the Office of the District Attorney, Westchester County, acknowledging receipt of petitioner’s complaint, but determining that there is “insufficient evidence to warrant a criminal investigation,” and referring the complaint to the Westchester Department of Health.
  8. A July 15, 2010 letter to County Official/Executives from “residents of the Coachman Family Center” complaining about the cost of housing and listing 13 environmental issues there.
  9. An undated Notice to Court requesting Biochemical Testing for petitioner and her three children.
  10. An undated, unaddressed request for Religious Exemption for all three children.  Petitioner states that U.Z. “experience[d] an allergic reaction and Mt. Vernon Health Center discontinue [sic] immunization shots.  [Z.W.] was removed also from immunization shots by private Dr.  U.W. and M.W has [sic] legal exemption.  Two different Dr.’s [sic] remove my children from the immunization shots.”
  11. The January 18, 2012 denial letter from the superintendent, described above.
  12. July 15, 2010 Progress Notes from Mount Vernon Neighborhood Health Center regarding petitioner.
  13. A July 8, 1999 Referral Request for petitioner referencing “very unusual skin lesions.”
  14. Mount Vernon Hospital Emergency Department notes regarding petitioner.
  15. A December 23, 2011 Laboratory Report regarding U.W.’s sensitivities to certain antibiotics.
  16. Petitioner’s January 19, 2012 request for home school information, in which petitioner also states “Please excuse my children [sic] records concerning this matter for it needs medical and Legal attention toward the matter.  I am in process with different agencies in order to resolve this matter.”

As noted above, petitioner asserts that she has relied on the Declaration in Exhibit A for nine years for M.W.  For Z.W., petitioner submits the same exhibits, except that as Exhibit A, instead of the Declaration, she submits the 2002 letter that the superintendent reviewed referring to “Baby Girl [W.]” with a 2001 birthday from the unlicensed physician.  For U.W., petitioner again submits the same exhibits with two exceptions:  Exhibit A is the same Declaration as for M.W., but is notarized in 2007 and substitutes U.W.’s name; and Exhibit B is a different physician’s letter from Mount Vernon Neighborhood Health Center, Inc., also dated October 28, 2011, relating to him.[3] That letter provides:

Briefly, there is some debate regarding [U.W.]’s sensitivity to vaccines.  Our records reveal immunizations being given up to the year 1999 and beginning in 1996.  [Petitioner] presents documentation that [U.W.] may be sensitive to certain vaccines.  Our records do not support this claim.  I am referring [U.W.] to an allergist for sensitivity testing regarding vaccines.

The additional exhibit that I accepted from respondent is a February 1, 2012 letter from an allergist, presumably the one to whom U.W. was referred.  The physician saw all three children and stated that although petitioner reported that Z.W. and U.W. had allergic reactions after receiving vaccines (U.W.’s reaction occurred at school), and M.W. had received no vaccines because of her siblings’ history, petitioner was unable to provide a detailed history of reactions, medical records or other documentation, and the physician was “unable to determine if there was truly a vaccine reaction based on this poor history.”  She noted further that the children had no history of asthma or allergies and that all three had “normal spirometry”[4] in her office.  The physician concluded that the children had:

immunity to a few vaccines although they were not immune to multiple vaccines . . . I cannot say with certainty that the [W.] children did not or will not ever have a reaction to a vaccine.  The risk based on the limited history I was able to obtain does not seem high.  In this situation I would recommend that if the children are vaccinated, they should wait in the pediatrician’s office for 30 minutes after vaccination during which time most IgE[[5] ] mediated reactions would occur.

Neither the allergist’s letter nor any of petitioner’s other submissions demonstrate that immunization will be detrimental to the health of any of her children in accordance with PHL §2164(8).  Of the 16 exhibits petitioner submits, three concern her personal health, not that of her children; six relate to environmental issues and complaints relating to her living situation; and one requests testing for biochemical exposure for all three children.  PHL §2164(8) requires evidence that immunization would be detrimental to the child’s health.  To the extent that petitioner submits documents relating to her own health or medical issues, they are not relevant to whether immunizations are detrimental to the health of her children (seeAppeal of N.C., 50 Ed Dept Rep, Decision No. 16,172, judgment granted dismissing petition, Sup. Ct. Albany Co., June 17, 2011).  Similarly, although petitioner appears to link her environmental concerns to the health of her children, she provides neither the results of any environmental testing nor anything from a licensed physician demonstrating that immunization is detrimental to her children’s health because of their living environment.

None of petitioner’s documents demonstrate that immunizations are detrimental to any of the children individually.  In the appeal for M.W., petitioner submits only two exhibits pertaining to her.  Presumably, the undated Affidavit and Declaration of Vaccination Exemption notarized on November 10, 2004 for “Baby Girl II [W.]” (Exhibit A) refers to M.W., since she is the second-born daughter.  However, this is merely petitioner’s declaration and fails to provide any medical information.  The October 28, 2011 letter from Mount Vernon Neighborhood Health Center, Inc. (Exhibit B that references M.W. and Z.W.) similarly fails to provide any medical information; it merely states that M.W. and Z.W. have not received any vaccines.

As to Z.W., petitioner submitted a November 2002 letter from a physician.  However, as described above, respondent considered such letter and determined that it was insufficient because it was nine years old, referenced only one female child, and was written by a physician whose license was revoked subsequent to the date of the letter.  As indicated above, PHL §2164(8) requires certification by “any physician licensed to practice medicine in this state.”  Based on this record, while respondent considered the letter, it was not bound by it and acted reasonably under the circumstances in giving it no weight and requesting that petitioner provide an up-to-date certification by a licensed physician.  Indeed, medical science can change substantially in nearly a decade, as can a patient’s health profile – particularly in the case of growing children.  Finally, as to U.W., the declaration provides no medical information.  The laboratory report in petitioner’s Exhibit O merely shows that U.W has sensitivities to antibiotics; nothing in that report demonstrates that immunization would be detrimental to U.W.’s health.

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).

Based on the record before me, petitioner has failed to meet her burden of demonstrating that a physician licensed to practice medicine in this state has certified that immunizations would be detrimental to the health of any of her children.  Therefore, they are not entitled to a medical exemption from the immunization requirements of PHL §2164.

Similarly, to the extent petitioner seeks a “Religious Exemption with Medical Assessment,” she has failed to meet her burden of demonstrating that she has genuine and sincere religious beliefs which are contrary to immunization pursuant to PHL §2164(9).  That section provides:

This section shall not apply to children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to the practices herein required, and no certificate shall be required as a prerequisite to such children being admitted or received into school or attending school.

In order to obtain a religious exemption, the applicable DOH regulation, 10 NYCRR §66-1.3(d), requires that a parent must provide:

a written and signed statement from the parent, parents or guardian of such child, stating that the parent, parents or guardian objects to their child's immunization due to sincere and genuine religious beliefs which prohibit the immunization of their child in which case the principal or person in charge of the school may require supporting documents.

Petitioner makes no claim and submits no evidence regarding her religious beliefs.  The only documents mentioning petitioner’s “personal beliefs” are the Declarations she submits for M.W. and U.W.  The statement on the Declaration that each child is “exempted from any and all vaccinations on the grounds that such is contrary to my personal beliefs” is merely part of the printed form, and not an actual expression of petitioner’s beliefs.  The only indications of petitioner’s personal beliefs are not of a religious nature, but rather relate to the effect of environmental issues on the health of her children.  Based on the record before me, petitioner has failed to demonstrate that her opposition to immunization stems from sincerely held religious beliefs.

Accordingly, based on this record, I cannot conclude that respondent’s denial of petitioner’s requests for exemptions was arbitrary or capricious.

THE APPEALS ARE DISMISSED.

END OF FILE.

[1] Respondent submits a copy of a Physician Information report from the New York State Department of Health’s (“DOH”) Office of Professional Medical Conduct indicating that the physician’s license was revoked effective April 1, 2004.

[2] Petitioner does not assert that she and her children are homeless.  However, I remind respondent of its obligations to comply with the requirements of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 etseq., “McKinney-Vento”) if an individual makes a claim of homelessness.

[3] It is unclear if the same physician signed both the letter relating to U.W. and the other letter for M.W. and Z.W. because the signature line is not visible.

[4] According to the website WebMD, “Spirometry is the simplest lung function test that can be done. It can even be done in a doctor's office, if he/she has the right equipment.”  Spirometry measures how much air you can breathe in and out and how fast you can breathe out that volume of air.

[5] According to WebMD, “[a]llergens cause the body's natural defenses (immune system) to produce chemicals called immunoglobulin E (IgE) antibodies.”