Appeal of S.H., on behalf of his son A.H., from action of the Board of Education of the East Ramapo Central School District regarding immunization.

Decision No. 17,691

(July 9, 2019)

Harris Beach, PLLC, attorneys for respondent, Douglas E. Gerhardt, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the East Ramapo Central School District (“respondent”) that his son, A.H. (“the student”) is 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 student attended respondent’s Hempstead Elementary School (“Hempstead”).  On or about December 10, 2018, petitioner requested a medical exemption from the immunization requirements of PHL §2164.  In a letter to petitioner dated December 17, 2018, the principal of Hempstead denied the medical exemption request.

On or about January 4, 2019, petitioner’s spouse submitted a request for a religious exemption from the immunization requirements of PHL §2164.  In a letter dated January 10, 2019, the principal of Hempstead denied petitioner’s religious exemption request.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 9, 2019.

Petitioner claims to have genuine and sincere religious beliefs that are contrary to immunization and seeks a religious exemption from immunization pursuant to PHL §2164.  Petitioner although asserts that, until “recently,” the student “attended school without vaccines with a medical exemption,” but that respondent denied this request as well as his religious exemption request.  Petitioner seeks a determination that the students may attend respondent’s schools and be exempt from vaccinations on religious grounds.  Respondent asserts that its determination regarding petitioner’s application for a religious exemption is appropriate and should be upheld.

To the extent petitioner seeks a determination that the student is entitled to a religious exemption request, the appeal must be dismissed as moot.  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.[1]

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 petitioner 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 petitioner – 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.

Although not entirely clear from the petition, to the extent petitioner seeks to appeal respondent’s medical exemption request, 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  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 G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Here, respondent denied petitioner’s medical exemption request on December 17, 2018.  Affording the usual five days for mailing, excluding Sundays and holidays, petitioner had until January 17, 2019 to commence an appeal regarding the medical exemption request.  The instant appeal was commenced by personal service of the petition on April 2, 2019, over two months after the 30-day time limitation.  Although petitioner asserts in the petition that “the website” concerning appeals “is very vast and [he] was unable to locate the information on how to process [the] appeal,” except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Funderburke-Ivey, 57 Ed Dept Rep, Decision No. 17,241; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846).  Petitioner does not identify any such unusual circumstances in the petition.  Therefore, to the extent petitioner seeks to challenge respondent’s denial of his medical exemption request, the appeal must be dismissed as untimely.

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

THE APPEAL IS DISMISSED.

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