Appeal of J.S. and D.S., on behalf of their son D.S., from action of the Board of Education of the City School District of the City of Lockport regarding immunization.

Decision No. 16,821

(August 31, 2015)

Hogan Willig, PLLC attorneys for petitioners, Steven M. Cohen, Esq., of counsel

Harris Beach, PLLC, attorneys for respondent, Jeffrey J. Weiss, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Lockport City School District (“respondent”) that their son, D.S. (“the student”), is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed. 

Petitioners’ son has attended school in respondent’s district since the 2005-2006 school year, when he entered kindergarten.  Although not entirely clear, it appears that D.S. received a medical exemption from immunization at that time.  In October 2012, respondent’s Director of Early Childhood Programs and School Health Services (“director”) received notification from the junior high school nurse that D.S. was lacking several immunizations[1] and that his file did not contain sufficient information to warrant a medical exemption.

The student’s health record contained two letters from his physicians, one dated March 23, 2005 from Dr. Kris Sasankan stating that the student’s father and half-brother “had suffered significant adverse reactions to vaccinations.  As a result, [petitioners] are very nervous about any vaccination to [the student].”  Dr. Sasankan stated that petitioners did not want D.S. to receive any other vaccines and he had “honored their wish....”  The other letter, dated October 24, 2005, was from Dr. Steven Grabiec who noted that he “would recommend that [the student] be exempt from routine immunizations/vaccinations, based on family history of neurologic reactions.”  The student’s record also contained two health appraisal forms, dated February 21, 2011 and February 27, 2012, respectively.  Both were signed by Dr. Sasankan and noted that petitioners decline all vaccinations and immunizations.  

On or about October 15, 2012, petitioners received a “Notice of Intent to Exclude a Student from School Due to Lack of Required Immunizations” which stated that the student would be excluded from school, effective November 5, 2012, if he did not receive the Diphtheria (DTaP and Tdap), MMR, Varicella and Hepatitis B vaccine series. According to the record, respondent mailed petitioners the district’s medical exemption forms, as well as a list of contraindications to immunizations that was created by the federal Centers for Disease Control and Prevention (“CDC”).  Petitioners delivered a note, dated October 25, 2012, from Dr. Grabiec stating, “it is my opinion that all routine vaccinations would be medically contraindicated.”  However, petitioners were informed that the note was insufficient because it failed to provide specific contraindications for each of the vaccinations that the student lacked.

Thereafter, petitioners submitted four medical exemption forms, each dated December 6, 2012 and signed by Dr. Grabiec, requesting a medical exemption from the Diphtheria (DTaP and Tdap), MMR, Varicella and Hepatitis B vaccine series based upon the “severe nature” of adverse reactions experienced by the student’s half-brother and father.  Respondent’s staff continued to investigate the appropriateness of petitioners’ requests and contacted Debra Hilthstein, New York State Department of Health (“DOH”) Western Region Manager for the Bureau of Immunizations.  According to respondent, Ms. Hilthstein informed the school nurse that petitioners’ requests did not meet the requirements for a medical exemption.  In a subsequent conversation with respondent’s director, Ms. Hilthstein stated that the reason provided by petitioners did not constitute sufficient grounds to warrant a medical exemption.  

By letter dated February 1, 2013, the director contacted the DOH Bureau of Immunizations’ School Assessment Unit and requested guidance on the student’s medical exemption request.  Respondent also provided the student’s immunization records.  Petitioners’ counsel also wrote a letter to DOH for its consideration in rendering an opinion.  By letter dated March 6, 2013, Dr. Priya Sharma, a medical director in DOH’s Bureau of Immunizations responded, concluding that “[t]he familial history which is documented in your letter from February 1, 2013 states that this student’s biological father reportedly experienced post-immunization paralysis following an unknown immunization and his half-brother experienced seizures following DPT vaccination. The suspected adverse reactions of [the student’s] family members are neither contraindications nor precautions as to immunization of the student in question.”  By letter dated March 14, 2013, petitioners were notified that the student would be excluded from school after March 28, 2013, if he did not receive the required immunizations. This appeal ensued. Petitioners’ request for interim relief was granted on April 15, 2013.

Petitioners assert that their son is entitled to the requested immunization exemptions.  Respondent contends that the petition should be dismissed for improper service and failure to state a claim upon which relief can be granted.  Respondent asserts that it fully complied with PHL and DOH regulations in rejecting petitioners’ request for a medical exemption and that petitioners have not established a sufficient basis entitling the student to a medical exemption from vaccination.  Respondent maintains that its determination to deny petitioners’ request, therefore, was not arbitrary, capricious or unreasonable. 

I must first address respondent’s argument that service was improper.  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).  

The affidavit of service filed with the petition indicates that it was served upon respondent by delivery to Laurie Banko, secretary to the district clerk, “a responsible person of suitable age and discretion.”[2]  According to an affidavit of the process server submitted with petitioners’ reply, Ms. Banko informed him that she was designated to accept service.  Respondent denies that Ms. Banko was authorized by the board to accept service.  In addition, respondent argues that pursuant to §275.8(a), only persons in the office of the superintendent who are authorized to accept service may do so on behalf of the board.  Respondent correctly notes that Ms. Banko is a secretary to the district clerk and is not a person in the office of the superintendent, within the meaning of §275.8(a).  Although petitioners argue that Ms. Banko indicated that she was authorized to accept service, they do not dispute that she is not in the office of the superintendent.  Nor is there evidence that she was authorized by the board to accept service on its behalf. 

Because the petition was not served on the district clerk, a member of the board of education, the superintendent, or a designee in the office of the superintendent, there was no valid service of process and the Commissioner does not have jurisdiction over this appeal (Appeal of Henley, 46 Ed Dept Rep 556, Decision No. 15,594; Appeal of Sailsman, 45 id. 61, Decision No. 15,260).  Moreover, when there is no proof that an individual is authorized to accept service on behalf of the school board or superintendent, service on that individual is improper and the appeal must be dismissed (Appeal of Costanzo, 48 Ed Dept Rep 289, Decision No. 15,860).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  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 appeal.

Specifically, 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, DOH regulations require that no child shall be admitted to school without a certification of immunization or a medical exemption form or signed statement from a physician licensed to practice medicine in New York State, “certifying that immunization may be detrimental to the child’s health, containing sufficient information to identify a medical contraindication to a specific immunization and specifying the length of time the immunization is medically contraindicated” (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).

Petitioners claim that D.S. is entitled to a medical exemption to the Diphtheria (DTaP and Tdap), MMR, Varicella and Hepatitis B vaccine series because of alleged adverse reactions experienced by the student’s father and half-brother.[3]  Petitioners contend that the student is entitled to the medical exemption because his doctor’s certifications comply with the requirements of PHL §2164(8) and that PHL and DOH regulations do not require or permit a school district to inquire into the validity of a physician’s certification that immunization would be detrimental to a child’s health.  Petitioners argue that such physician’s certification must be accepted on its face without further scrutiny.

Respondent argues that, to the contrary, petitioners’ submissions failed to meet the requirements for a medical exemption from immunization and that it properly engaged in further inquiry and research.  The record indicates that, by letter dated February 1, 2013, respondent sought a determination from DOH as to petitioners’ medical exemption request.  In this letter, respondent described its review of the student’s medical records and the information provided by petitioners and explained that it requested that petitioners “contact their physicians in an attempt to obtain a medical diagnosis and vaccination recommendations based on the student’s individual condition and medical needs, not those of his relatives.” 

The record also contains copies of petitioners’ four medical exemption request forms, each dated December 6, 2012 and signed by Dr. Grabiec, which requested medical exemptions from the Diphtheria (DTaP and Tdap), MMR, Varicella and Hepatitis B vaccine series based upon the “severe nature” of adverse reactions experienced by the student’s father and half-brother “after receiving immunization (documented reaction” (sic).  The four forms contain the identical rationale of adverse family reactions for each of the remaining required vaccinations; however, according to D.S.’s immunization records and supporting documentation, D.S.’s father had an adverse reaction only to Rubella, which is listed as an ingredient in the MMR vaccine, while D.S.’s half-brother’s adverse reaction was only to the Diphtheria (DTaP and Tdap) vaccine. The record does not establish that there were adverse family reactions to Varicella or Hepatitis B, the other required vaccines from which petitioners seek a medical exemption for D.S.  Thus, the documentation that the district had in the student’s file was not consistent with the information on the medical exemption request forms petitioners had submitted.  Respondent, consequently, engaged in additional inquiry and research.

To support its position that it was appropriate to engage in further inquiry and research regarding the requests, respondent relies on Lynch v. Clarkstown Cent. School Dist. (155 Misc 2d 846).  There, the court rejected petitioners’ argument that the school district was required to accept a doctor’s note at face value, without further investigation.  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 the request, the school district’s chief medical officer reviewed the medical research on Rett Syndrome, consulted with the doctor who wrote the certificate, and also conferred with specialists in pediatric neurology who concluded that “there were no reasons not to immunize a child with Rett Syndrome.”  In upholding the district’s denial of petitioners’ request, the court stated:  “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.”  The court further noted that the memorandum stated, “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).

In addition, in Appeal of McGann (32 Ed Dept Rep 187, Decision No. 12,800), 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.”

In the instant appeal, the record indicates that petitioners’ medical exemption requests were considered by respondent’s personnel who not only reviewed D.S.’s immunization records and supporting documentation but also consulted the CDC guidelines.  Based upon that review, respondent properly concluded that petitioners’ requests were, on their face, insufficient to warrant a medical exemption (see Appeal of a Student with a Disability, 54 Ed Dept Rep, Decision No. 16,667; Appeal of N.C., 50 id. Decision No. 16,172; Appeal of D.F., 50 id., Decision No. 16,132).  Consistent with DOH regulations and guidance, as well as the precedent described above, respondent appropriately engaged in further inquiry to determine whether the student was entitled to a medical exemption, by letter to DOH dated February 1, 2013. Moreover, through repeated consultation with DOH, respondent obtained written medical opinions and guidance indicating that the missing vaccinations were not contraindicated for the student solely because D.S.’s father experienced a negative reaction to one vaccine and his half-brother experienced a negative reaction to another vaccine.  Indeed, according to the CDC guidance and DOH opinion, familial adverse reaction is not even considered a precaution to immunization. 

Petitioners attempt to distinguish this matter from Appeal of D.F., 50 Ed Dept Rep, Decision No. 16,132, wherein a student, D.F., was not entitled to a medical exemption despite his sister’s adverse reaction to an MMR vaccine, by arguing that, in this instance, two of D.S.’s relatives reacted to vaccines.  However, petitioners’ argument is unpersuasive.  In the instant case, as in Appeal of D.F., only one first-order relative had a reaction to a specific vaccine – either Rubella or MMR.  Moreover, the record contains no indication that any of D.S.’s relatives have reacted adversely to the Hepatitis or Varicella vaccines.  In any event, as noted above, according to the CDC information and the DOH analysis, familial adverse reaction is neither a contraindication nor a precaution to immunization. 

Accordingly, under the circumstances presented in this case, I cannot find that respondent’s denial of petitioners’ medical exemption request pursuant to PHL §2164(8) was arbitrary or capricious.

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

THE APPEAL IS DISMISSED.

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