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Decision No. 17,765

Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of Dr. Ann Pedersen as superintendent, Dr. Jane Albert as supervisor of pupil personnel services, and Fallon Rubin as supervisor of elementary special education of the Lawrence Union Free School District[1] regarding immunization.

Decision No. 17,765

(October 10, 2019)

Minerva & D’Agostino, P.C., attorneys for respondent, Christopher G. Kirby, Esq., of counsel

BERLIN., Interim Commissioner.--Petitioner appeals the determination of Dr. Ann Pedersen as superintendent, Dr. Jane Albert as supervisor of pupil personnel services, and Fallon Rubin as supervisor of elementary special education[2] of the Lawrence Union Free School District (collectively, “respondents”) regarding his child (“the student”) and the medical exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

According to the record, on July 7, 2019, petitioner applied on the student’s behalf for a medical exemption from the immunization requirements of PHL §2164.  Petitioner additionally submitted a letter from the student’s physician supporting the request.  Subsequently, respondent Rubin notified petitioner that the documentation would be forwarded to the district’s physician, who might consult with a physician with expertise in immunology to determine the validity of petitioner’s request.  Respondent Rubin further informed petitioner that, because his request for a medical exemption and the accompanying letter contained the student’s medical information, the district required petitioner’s consent to release the student’s medical information to review his request.

By email dated July 8, 2019, respondent Rubin sent petitioner the consent form.  Rather than sign the form, petitioner requested to know the names of the physicians who would review the documentation.  There is no evidence in the record indicating that petitioner has consented to the release of the student’s medical information.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 19, 2019.

Petitioner argues that the student is unlawfully being denied access to summer school and home services mandated by her individualized education plan (“IEP”).  Petitioner also argues that it is unlawful for respondent to require him to consent to the release of the student’s medical information without identifying the physicians who will receive such information.

Respondents argue that petitioner fails to state a claim upon which relief can be granted and that the district was entitled to require additional information supporting petitioner’s request for a medical exemption, including review by the district’s medical professionals.

First, I must address a procedural issue.  Respondents argue that “Additional Affidavits” submitted by petitioner following service of the petition should not be considered.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Here, petitioner submitted additional exhibits and other supporting papers without requesting permission to do so.  Because the additional exhibits were not submitted in accordance with section 276.5 of the Commissioner’s regulations, I will not consider them as part of the record in this appeal.[3]

The appeal must be dismissed for lack of personal jurisdiction over respondents.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  In this case, petitioner named the superintendent and two district employees as respondents, but only the district clerk was served with a copy of the petition.  Accordingly, the appeal must be dismissed for failure to personally serve respondents with the petition (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,348; Appeal of Loschiavo, 45 id. 525, Decision No. 15,404; see also Appeal of Goldin, et al., 40 id. 639, Decision No. 14,573).

Additionally, to the extent petitioner seeks review of his medical exemption request, 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).  Here, the district has not made a determination to grant or deny petitioner’s request for a medical exemption.  Therefore, petitioner’s allegations concerning an alleged denial of his request must be denied as premature.[4]

Finally, to the extent that petitioner challenges respondents’ failure to provide services during the summer of 2019, such challenge is 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).  Any program operated during the summer of 2019 has ended, and no effective relief may be granted.

In light of this disposition, I need not address the parties’ remaining arguments, including arguments raised for the first time in respondents’ memorandum of law.[5]

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] I note that petitioner incorrectly identified this district as “Lawrence Union Free School District No. 15” in the caption of the appeal.  Because the school district is not a party to this proceeding, I need not consider the effect of this error.

 

[2] In the petition, petitioner incorrectly identifies respondent Albert’s title as “head of special education” and respondent Rubin’s title as “school district representative.”

 

[3] I further note that, although the new submissions are not in the nature of a reply, they were served well after petitioner’s time to submit a reply expired (see 8 NYCRR §275.14[a]).

 

[4] For the benefit of the parties, I note that the district acted within its rights to refer petitioner’s request for a medical exemption to a medical practitioner to determine whether the request was in conformity with PHL §2164 (10 NYCRR §66-1.3[c]; Matter of Lynch v. Clarkstown CSD, 155 Misc2d 846).

 

[5] A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).