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Decision No. 17,696

Appeal of E.F., on behalf of his children S.F., L.F., and A.S.F., from action of Yaron Kornblum as President, Neil Wiener as Chairman, Ari Solomon as Executive Director, and the Board of Directors of the Hebrew Academy of Five Towns and Rockaway regarding immunization.

Decision No. 17,696

(July 15, 2019)

Ingerman Smith, LLP, attorneys for respondent, Neil M. Block, Esq., of counsel

ELIA. Commissioner.--Petitioner appeals the determination of Yaron Kornblum as President, Neil Wiener as Chairman, Ari Solomon as Executive Director, and the Board of Directors of the Hebrew Academy of Five Towns and Rockaway (“HAFTR”) (collectively, “respondents”) that his children, S.F., L.F., and A.S.F. (“the students”), are not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  Briefly, petitioner’s children have attended HAFTR at all relevant times to this appeal.  On April 12, 2019, respondent denied petitioner’s request for a religious exemption from the immunization requirements of PHL §2164 on behalf of his three children.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 9, 2019 “to the extent that petitioner’s children ha[d] been excluded from the school due to lack of immunizations.”

Petitioner argues that his request for a religious exemption[1] from vaccination requirements should have been granted and the students should be permitted to attend school.

Respondent contends that petitioner’s request for a religious exemption was not based on sincerely-held religious beliefs.

The appeal 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).  Respondent submits an affirmation from its attorney dated June 14, 2019 which indicates that, as of May 9, 2019, petitioner’s children are no longer enrolled in HAFTR “because of a default of their contractual tuition obligations to HAFTR,” which is unrelated to the denial of petitioner’s request for a religious exemption.  Given the fact that the students no longer attend HAFTR for other reasons, the instant appeal challenging respondent’s exclusion of the students for lack of required immunizations has been rendered moot (see Appeal of He, 57 Ed Dept Rep, Decision No. 17,299).

Additionally, the appeal is moot in light of the enactment of Chapter 35 of the Laws of 2019.  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 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.

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] This appeal solely concerns the denial of petitioner’s request for a religious exemption from the immunization requirements of PHL §2164.  Although HAFTR’s executive director indicates in an affidavit that “there is an undated note on file in the high school nurse’s office in which the petitioner and his spouse declare a medical exemption for vaccinations of their children,” this request was not granted and petitioner seeks no relief related to such request.  Petitioner does not mention the medical exemption request in the petition, and petitioner’s sole request for relief is “[i]mmediate relief of [sic] this unfair and unjust removal of our girls from the Haftr school, based on our sincere religious exemption to vaccines ...” (emphasis added).

 

[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.”