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Decision No. 17,678

Appeal of I.J. and N.J., on behalf of their daughters N.J. and D.J., from action of the Shulamith School for Girls regarding immunization.

Decision No. 17,678

(July 1, 2019)

Chesney & Nicholas, LLP, attorneys for petitioner, Lindsie B. Alterkun, Esq., of counsel

Putney, Twombly, Hall & Hirson LLP, attorneys for respondent, Philip H. Kalban, Esq., of counsel    

ELIA, Commissioner.--Petitioners appeal the determination of the Shulamith School for Girls (“respondent”) that their daughters (“the students”), are not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

During the 2018-2019 school year, the students were enrolled in Shulamith.  The record indicates that, by letter dated December 3, 2018, petitioners sought a religious exemption from the immunization requirements for the students.  The record indicates that, by letter dated December 13, 2018, respondent’s executive director denied petitioners’ religious exemption request.  This appeal ensued.  Petitioners’ request for interim relief was granted on January 15, 2019.[1]

Petitioners claim to have genuine and sincere religious beliefs that are contrary to immunization and seek a religious exemption from immunization pursuant to PHL §2164.  Petitioners seek a determination that the students may attend Shulamith and be exempt from vaccinations on religious grounds.  Respondent asserts that its determination regarding petitioners’ application for a religious exemption is appropriate and should be upheld.

At all times relevant to the events leading to this appeal, Public Health Law §2164 included provisions authorizing an exemption based on religious beliefs to required immunizations.  Specifically, Public Health Law§2164(9) provided:

[t]his 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 [of immunization] shall be required as a prerequisite to such children being admitted or received into school or attending school.

However, on June 13, 2019, Chapter 35 of the Laws of 2019 was enacted, effective immediately, which repealed subdivision nine of §2164 of the Public Health Law, thus eliminating the religious exemption to immunization requirements to attend school.[2]

The appeal, therefore, must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).

With the enactment of Chapter 35 of the Laws of 2019, effective June 13, 2019, no student may be exempted from required immunizations based on religious beliefs, such as the exemption claimed by petitioners in this appeal.  The legislative intent of Chapter 35 is to protect the public health by ending non-medical exemptions from immunization (see Sponsor’s Mem. Bill Jacket, L 2019, ch 35).  As a result, the relief sought by petitioners – an order granting a religious exemption to the immunization requirements of Public Health Law §2164 - may no longer be obtained, rendering this matter academic.  Consequently, the appeal must be dismissed as moot.

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] On May 28, 2019, while this appeal was pending, respondent commenced a civil action in the U.S. District Court for the Eastern District of New York challenging, inter alia, my jurisdiction in entertaining the instant appeal and in issuing the January 15, 2019 stay order (Shulamith School for Girls v. Elia, et al., Case No. 2:19-cv-03152-MKB-RER).  In an order dated May 28, 2019, the court granted a temporary restraining order to the limited extent that the January 15, 2019 stay order be “temporarily lifted solely to permit Shulamith to exclude students who have not been vaccinated against the measles from the Shulamith-sponsored extracurricular activity scheduled for the evening on May 28, 2019 ....”

 

[2] PHL §2164(7)(a), as also amended by Chapter 35 of the Laws of 2019, provides, “[n]o 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 [a certificate of immunization] or some other acceptable evidence of the child’s immunization against poliomyelitis, mumps, measles, diphtheria, rubella, varicella, hepatitis B, pertussis, tetanus, and, where applicable, Haemophilus influenzae type b (Hib), meningococcal disease, and pneumococcal disease; provided, however, such fourteen day period may be extended to not more than thirty days for an individual student by the appropriate principal, teacher, owner or other person in charge where such student is transferring from out-of-state or from another country and can show a good faith effort to get the necessary certification or other evidence of immunization or where the parent, guardian, or any other person in parental relationship to such child can demonstrate that a child has received at least the first dose in each immunization series required by this section and has age appropriate appointments scheduled to complete the immunization series according to the Advisory Committee on Immunization Practices Recommended Immunization Schedules for Persons Aged 0 through 18 Years.”