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Decision No. 17,733

Appeal of E.P., on behalf of her daughter N.P., from action of the Saints John and Paul School and Principal Fatima deCarvalho-Gianni regarding immunization.

 

Decision No. 17,733

(August 14, 2019)

Patricia Finn, Esq., attorney for petitioner

Traub Lieberman Straus and Shrewsberry, LLP, attorneys for respondent, Jonathan R. Harwood, Esq., of counsel

ELIA., Commissioner.--Petitioner appeals the determination of the Saints John and Paul School (“Saints John and Paul”) and its principal Fatima deCarvalho-Gianni (collectively, “respondents”) that her daughter, N.P. (“the student”), is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

On February 15, 2018, Saints John and Paul accepted the student for admission.  Thereafter, petitioner was provided with “health forms to complete.”  On April 16, 2018, petitioner submitted a written request for a religious exemption to respondents.

By email dated April 17, 2018, Saints John and Paul’s assistant principal notified petitioner that the school “must decline [the student’s] acceptance based on ... lack of immunization.”  Thereafter, petitioner engaged an attorney who conferred with counsel for respondents.  By letter dated May 11, 2018, respondents denied petitioner’s request.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 4, 2018. 

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 seeks a determination that the student may attend the school and be exempt from vaccinations on religious grounds.

Respondents argue that the appeal must be dismissed for improper service, as untimely and for lack of subject matter jurisdiction. Respondents assert that their determination regarding petitioner’s 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.[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.

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

THE APPEAL IS DIMISSED.

END OF FILE

 

[1] 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.”