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Decision No. 16,670

Appeal of L.L., on behalf of her daughter J.L., from action of the New York City Department of Education, Health Service Coordinator Julia Sykes, and Health Liaison Betty Feibusch, regarding immunization.

Decision No. 16,670

(September 26, 2014)

Siegel & Siegel, P.C., attorneys for petitioner, Sharon M. Siegel, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, David Alan Rosinus, Jr., Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“DOE”), Health Service Coordinator Julia Sykes (“coordinator”), and Children First Network Health Liaison Betty Feibusch (“liaison”) (collectively “respondents”), that her daughter, J.L., is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed. 

During the 2012-2013 school year, petitioner’s daughter, J.L., was a sixth-grade student attending DOE’s I.S. 281 Joseph Cavallaro (“I.S. 281”).  On October 29, 2012, petitioner submitted a Request for Religious Exemption to Immunization Form, dated October 26, 2012, to “Susan Czarnecki, PAS” at I.S. 281, explaining that her daughter was exempt from vaccinations and immunizations due to her religious beliefs.  Petitioner stated, among other things, that “. . . vaccine [sic] have impure substances [sic] vaccinations contain different foreign viruses and bacteria.  So when you inject the vaccines directly into the bloodstream, it goes against God’s command of keeping our bodies in purity.”  She further explained:

God created the world and us in a perfect way.  He gave us the immune system as a protection from various diseases.  We must always have our unfailing faith in God, however immunizations show a lack of faith in God, a lack of faith in His promised protection for us, a lack of the immune system. 

By memorandum dated November 29, 2012, the coordinator denied petitioner’s request for a religious exemption, determining that the documentation she had submitted was “inadequate to warrant an exemption and does not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization.  [J.L.] has all of the required vaccines except the ‘Tdap’ booster.”  The memorandum also informed petitioner of DOE’s appeal process and notified her that if her appeal was denied, she could commence an appeal to the Commissioner of Education pursuant to Education Law §310.  Petitioner appealed the determination and met with the liaison on December 12, 2012.  At the interview with the liaison, petitioner provided additional information in response to six questions.  According to respondents, petitioner stated that she is an Orthodox Christian; that around 2006 or 2007, she began attending church and reading certain religious books; and that she became opposed to all immunizations “[a]round three years ago.”  Petitioner stated that if necessary, she will take her children to the doctor and take medication.  The liaison then memorialized petitioner’s responses and forwarded them to the coordinator along with a recommendation of “approval.”  

By memorandum dated December 20, 2012, the coordinator denied petitioner’s appeal.  She determined that “[t]he documentation you submitted and the information provided during the appeal interview do not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization.”  The memorandum also informed petitioner that she could appeal to the Commissioner of Education within 30 days pursuant to Education Law §310, and that during the appeal process, her daughter would not be permitted to remain in school.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 6, 2013. 

Petitioner maintains that she has sincerely-held religious beliefs against immunizing J.L. and that respondents’ denial of her exemption request was arbitrary and capricious.  Petitioner asserts that the November 29, 2012 memorandum contained no explanation for the determination and did not show that petitioner’s beliefs were not sincere, because J.L. was vaccinated prior to petitioner’s current religious beliefs.  Petitioner also alleges that the liaison who interviewed her “picked and selected only sections of” her responses to her interview questions.  Petitioner claims that the December 20, 2012 determination did not contain a copy of the questions and answers that the liaison recorded during the interview, or any explanation other than a statement that petitioner’s beliefs were not found to be sincere.  Petitioner seeks a religious exemption for J.L. pursuant to PHL §2164.

Respondents assert that the appeal is untimely.  They maintain that the determination was not arbitrary or capricious because petitioner failed to establish that her objections to immunizations are based on genuinely and sincerely-held religious beliefs.

I must first address the procedural issues.  By letter dated March 18, 2013, respondents object to petitioner’s verified reply, arguing that it contains new factual and legal assertions which were not included in the petition.  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).  I note that, in their March 18, 2013 letter, respondents specifically claim that petitioner’s assertion that respondents provided insufficient or no basis for their determination was only “briefly alleged” in her verified petition and that “she has not previously raised this issue as a basis for relief, and only does so for the first time in her Verified Reply.”  I disagree.  As discussed below, at the time she commenced her appeal petitioner was not represented by counsel.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Application of Schenk, 47 id. 375, Decision No. 15,729).  On this record, I find that petitioner sufficiently raised this argument in her petition.  However, to the extent that her reply and additional submissions attempt to buttress the arguments in the petition and belatedly add assertions and evidence that should have been in the petition, I have not considered them.

Respondents also object to petitioner’s memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, while I have reviewed petitioner’s memorandum of law, I have not considered those portions containing new allegations or claims that were not part of the pleadings. 

By letter dated March 18, 2013, respondents requested, pursuant to 8 NYCRR §276.5, that, should I consider the newly-raised issues in petitioner’s verified reply and memorandum of law, that I also consider a supplemental affidavit from the coordinator.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  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).  As noted above, I have not considered any new factual or legal assertions contained in petitioner’s reply and memorandum of law.  Therefore, I will not consider the supplemental affidavit from the coordinator.

By letter dated April 2, 2013, petitioner requested, pursuant to 8 NYCRR §276.5, that I accept a supplemental affidavit from petitioner to respond to the proposed supplemental affidavit from DOE’s coordinator.  Because I have not considered the supplemental affidavit from the coordinator, petitioner’s request to submit her additional affidavit is also denied.

By letter dated July 26, 2013, petitioner requested permission, pursuant to 8 NYCRR §276.5, by and through her newly-retained counsel,[1] to submit an additional affidavit from petitioner, as well as additional exhibits.  The application notes that petitioner made the mistake of handling the matter without legal representation, did not understand the procedures involved due to her language barrier, and should have retained an attorney initially.  Respondents object to petitioner’s request on the grounds that (1) the proposed affidavit is procedurally defective because it is unsigned and unsworn,[2] and (2) petitioner has failed to demonstrate good cause for her submission.  I have reviewed the July 26, 2013 supplemental affidavit and find that it contains arguments that were either raised in petitioner’s previous submissions or responsive to the proposed supplemental affidavit from DOE’s coordinator, which I have not considered, and new assertions which were not raised in the pleadings.  Petitioner’s request is therefore denied.

Respondents argue that the appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When 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).  By memorandum dated December 20, 2012, the coordinator denied petitioner’s request for a religious exemption from the New York State vaccination requirements, and advised petitioner of her right to appeal to the Commissioner within 30 days of the determination.  Petitioner asserts that she received the determination on December 21, 2012.  Petitioner therefore had until January 21, 2013, to commence this appeal.  According to petitioner’s affidavit of service, the petition was not personally served upon an individual authorized to accept service on behalf of the district[3] until January 29, 2013.  The appeal is therefore untimely.

Petitioner asserts in her reply that on January 18, 2013, she also mailed a copy of the verified petition to the superintendent of the district attended by J.L., and therefore, respondents timely received notice of this appeal.  However, section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  Petitioner’s January 18, 2013 attempt to complete service of process by mail did not constitute proper service, and petitioner has not demonstrated good cause for her delay in commencing the appeal (8 NYCRR §275.16).  Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  PHL §2164 prohibits a school from admitting a child without evidence that the child has received certain immunizations.  However, §2164(9) provides as follows:

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.

The determination of whether petitioner qualifies for a religious exemption requires the careful consideration of two factors:  whether petitioner’s purported beliefs are religious and, if so, whether such religious beliefs are genuinely and sincerely held (see Farina v. Bd. of Educ. of the City of New York, et al., 116 F. Supp. 2d 503; Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410).  It is not necessary for persons to be members of a recognized religious organization whose teachings oppose inoculation to claim the statutory exemption (Sherr, et al. v. Northport-East Northport Union Free School Dist., et al., 672 F. Supp. 81).  However, the exemption does not extend to persons whose views are founded upon medical or purely moral considerations, scientific or secular theories, or philosophical and personal beliefs (Farina v. Bd. of Educ. of the City of New York, et al., 116 F. Supp. 2d 503).

Whether a religious belief is sincerely held can be a difficult factual determination that must be made, in the first instance, by school district officials (Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410; Appeal of C.S., 49 id. 106, Decision No. 15,971; Appeal of H.K. and T.K., 49 id. 56, Decision No. 15,957; Appeal of S.B., 48 id. 332, Decision No. 15,875).  A parent/guardian who seeks a religious exemption must submit a written and signed statement to the school district stating that the parent/guardian objects to their child’s immunization due to sincere and genuine religious beliefs which prohibit the immunization of their child (10 NYCRR §66-1.3[d]).  If, after reviewing the parental statement, questions remain about the existence of a sincerely-held religious belief, the principal or person in charge of a school may request supporting documents (10 NYCRR §66-1.3[d]).

In determining whether beliefs are religious in nature and sincerely held, school officials must make a good faith effort to assess the credibility and sincerity of petitioner’s statements and may consider petitioner’s demeanor and forthrightness.  While school officials are not required to simply accept a statement of religious belief without some explanation, they similarly should not simply reject a statement without further examination (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of H.K. and T.K., 49 id. 56, Decision No. 15,957; Appeal of S.B., 48 id. 332, Decision No. 15,875).

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 asserts that the coordinator’s determination did not contain a copy of the questions and answers that the liaison recorded during the interview, or any explanation other than a statement that petitioner’s beliefs were not found to be sincere.  However, petitioner does not cite any statute, rule, or regulation which requires a record of the interview to be provided along with the determination.  Moreover, according to the affidavit from the coordinator, before reaching her final determination, she considered the answers petitioner provided during her interview and subsequent letter, and concluded that petitioner did not state a religious basis for an immunization exception.

As noted above, one factor considered by the coordinator was J.L.’s immunization history.  However, the fact that a child has been immunized in the past is not necessarily dispositive in determining whether a genuine and sincere religious belief against immunizations exists (Lewis, et al. v. Sobol, et al., 710 F. Supp. 506; Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410; Appeal of L.K., 45 id. 10, Decision No. 15,243).  Indeed, petitioner explained that “[p]rior to my current religious beliefs, [J.L.], as well as my other child . . .  have been vaccinated.  [J.L.] has had all vaccinations, except the Tdap booster, administered.”

Respondents assert that petitioner’s claims that her beliefs are sincerely held are undermined by her statements that she “would go to a doctor for [medical advice and assistance] if necessary” and would do so “with prayer and God’s guidance.”     However, petitioner fails to explain how her religious beliefs allow medical treatment under certain circumstances but not others.

Upon careful consideration of the entire record, I find that petitioner has failed to meet her burden of establishing that her opposition to immunization stems from sincerely-held religious beliefs.  Petitioner states in the petition that, among other things, she “had come to [her] religious beliefs that are against the practice of vaccination in 2010” when she became a member of the Christian Orthodox church and “realized that vaccinations are against the Christians [sic] teachings.”   According to petitioner:

We are God’s creation and it is our responsibility to make sure that we keep ourselves pure and undefiled.

* * *

Vaccinations are a defilement of the body because vaccinations contain foreign substances which get introduced into the body.  The body is the Temple of the Holy Ghost, so vaccinations defile the Temple of the Holy Ghost.

Petitioner further asserts that “God commands us that we must keep our bodies in purity, for only in purity can the Holy Spirit abide in you.”  She states that “[v]accinations are unholy because they violate God’s command and authority, as vaccinations defile the body by introducing foreign substances into the body and vaccinations represent a lack of faith and trust in God and His way, the immune system.”  She also cites several verses from the Bible. 

However, while these statements are religious in nature, general statements about God, the perfection of our immune system, and citations to biblical verses and passages, without more, are not sufficient to establish that petitioner holds genuine and sincere religious beliefs against immunization (see Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410; Appeal of B.R. and M.R. Appeal of A.C., 50 Ed Dept Rep, Decision No. 16,175; Appeal of K.E., 48 id. 54, Decision No. 15,792). 

While the record reflects that petitioner may sincerely object to immunizations, the crux of the issue is whether the reasons for her objections are religious or predominantly philosophical, personal, medical or ethical in nature (see Caviezel v. Great Neck Public Schools, et al., 701 F. Supp. 2d 414 [EDNY 2010], aff’d 500 Fed Appx. 16 [2d Cir. 2012], cert. denied 133 S.Ct. 1997 [2013]).  The record as a whole lacks evidence of sincerely-held religious objections to immunizations.  Accordingly, I find that petitioner has failed to demonstrate that her opposition to immunization stems from sincerely-held religious beliefs or that respondents’ determination is unsupported by the record or otherwise arbitrary and capricious, or in violation of law.  The appeal, therefore, must be dismissed.

Finally, petitioner claims that the coordinator’s November memorandum provided “no explanation,” and that her December memorandum provided insufficient explanation, for the denial of her exemption request.  However, as noted above, the November 29, 2012 memorandum explained that J.L. “has all of the required vaccines except for the ‘Tdap’ booster” and both memoranda explained that the documentation and information provided by petitioner did not “substantiate a finding that [she holds] genuine and sincere religious beliefs which are contrary to immunization.”  Consistent with the memoranda, the coordinator avers in this appeal that, in reviewing petitioner’s request, she considered J.L.’s immunization history and determined that, “although Petitioner stated in her Request that she objected to vaccinations, I determined that the request did not substantiate a finding that she held genuine and sincere religious beliefs which are contrary to immunization.”  Respondents’ answering papers in this appeal also explain the basis for the denial of petitioner’s immunization exemption request and petitioner has had sufficient opportunity to attempt to address them, as noted above (see Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410).  On this record, I find that petitioner has failed to carry her burden with respect to this claim. 

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] On June 6, 2013, petitioner’s counsel submitted a notice of appearance in this proceeding.  Prior to that time, petitioner commenced and maintained this proceeding pro se.

 

[2] By letter dated August 14, 2013, petitioner’s counsel advised that the original signature page to petitioner’s July 26, 2013 affidavit was lost, and provided a copy of the original document as well as an original re-executed signature page.

[3] The record contains only one affidavit of service, purportedly on behalf of the DOE; petitioner submitted no affidavits of service demonstrating that the coordinator and liaison were personally served.  Nonetheless, the individual respondents have each appeared in this proceeding by way of the Corporation Counsel and have not raised any objections to service of process as to them individually.