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

Decision No. 17,649

(June 10, 2019)

Giulia Miller, Esq., attorney for petitioner

Zachary W. Carter, Esq., Corporation Counsel, attorneys for respondent New York City Department of Education, Agnetha Jacob, Esq., of counsel

Paul, Weiss, Rifkind, Wharton & Garrison, LLP, attorneys for respondent ABC Cassidy’s Place Preschool, Adam J. Bernstein, Esq., of counsel[1]

ELIA, Commissioner.--Petitioner appeals the determination of respondent New York City Department of Education (“respondent DOE”), through the actions of ABC Cassidy’s Place Preschool (“ABC Cassidy’s Place”)(collectively, “respondents”), that her child (“the student”), is not entitled to a religious exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

According to respondent DOE, ABC Cassidy’s Place contracts with respondent DOE to provide “education and support services to preschoolers with disabilities.”  Pursuant to this contract, ABC Cassidy’s Place is required to “strictly comply with all applicable provisions of [PHL] and applicable Chancellor’s Regulation” regarding immunization.  As relevant here, Chancellor’s regulation A-701 provides that requests for religious exemptions from immunization requirements must be forwarded to respondent DOE’s “ISC”[2] Health Director, who then forwards such requests to respondent DOE’s Office of School Health (“OSH”) (see Chancellor’s regulation A-701[III][A][4][b][ii]).  The regulation further states that:

OSH will approve or deny the request and inform the parent, principal, and ISC Health Director.  Students will be permitted to attend school until this initial determination is made.

If the request is denied, an internal appeal process is available, and a student is permitted to remain in school during the pendency of such appeal.  If the appeal is denied, this determination may be the subject of an appeal to the Commissioner pursuant to Education Law §310.

By letter dated July 30, 2018, respondent DOE notified petitioner that the student was eligible to attend a preschool special education program at ABC Cassidy’s Place.  In August 2018, petitioner requested a religious exemption from the immunization requirements of PHL §2164.  Following an exchange of correspondence between petitioner and representatives of ABC Cassidy’s Place, the director of ABC Cassidy’s Place communicated to the student’s father by telephone that petitioner’s request had been considered and rejected on September 4, 2018.

Contemporaneous with these events, OSH received a copy of petitioner’s request and mailed petitioner a request for additional information dated October 5, 2018.  There is no indication in the record that petitioner responded to the request for additional information, or that OSH issued a final decision on petitioner’s request.  This appeal ensued.  Petitioner’s request for interim relief was granted on September 24, 2018.

Petitioner argues that the denial of her religious exemption request by ABC Cassidy’s Place was erroneous because her request was based on sincerely-held religious beliefs which are contrary to immunization.

Respondents argue that the appeal should be dismissed as premature because OSH is responsible for issuing a final determination on petitioner’s request, and no such determination has been made.  In the alternative, respondents contend that petitioner is not entitled to a religious exemption from immunization because her objections are moral and personal, rather than religious, in nature.

The appeal must be dismissed as premature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  On this record, petitioner’s appeal is premature because OSH, in accordance with Chancellor’s regulation A-701, has not rendered a determination on petitioner’s request for a religious exemption.  The record reflects that, pursuant to its contract with respondent DOE, ABC Cassidy’s Place does not have the authority to render its own determination on requests for religious exemptions from immunization requirements, as it must abide by the Chancellor’s regulations governing such requests.  While ABC Cassidy’s Place purported to render a determination on petitioner’s religious exemption request by communicating its denial by telephone on September 4, 2018, the record indicates that OSH has not rendered a determination on petitioner’s request in accordance with Chancellor’s regulation A-701.  Therefore, on this record, I am constrained to conclude that the appeal is premature and must be dismissed (see e.g. Appeal of Parris, 51 Ed Dept Rep, Decision No. 16,261).[3]

Finally, I note that, as described above and stated in respondent DOE’s October 5, 2018 request for additional information, if OSH denies petitioner’s exemption request, petitioner may appeal any such denial by arranging for an interview with a health director, and during such appeal process, the student will be permitted to remain in school.  If any such appeal is denied, petitioner may then commence an appeal pursuant to Education Law §310 (see Appeal of C.C.-B., 58 Ed Dept Rep, Decision No. 17,592 [appeal of denial of religious exemption request by DOE dismissed for failure to exhaust administrative remedies where parent did not avail herself of DOE’s internal appeals process]).

In light of this determination, it is unnecessary to address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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