Decision No. 17,934
Appeal of M.M., on behalf of his son, B.M, from action of the New York City Department of Health and Mental Hygiene regarding immunization.
Decision No. 17,934
(October 27, 2020)
James E. Johnson, Corporation Counsel of the City of New York, attorneys for respondent, Sharon Sprayregen, Esq., of counsel
Rosa., Interim Commissioner.--Petitioner challenges a purported determination of the New York City Department of Health and Hygiene (“respondent”) that his son, B.M. (“the student”), is not entitled to a medical exemption from the immunization requirements of Public Health Law (“PHL”) §2164. The appeal must be dismissed.
At all times relevant to this appeal, the student attended the Dwight School, a nonpublic school (“Dwight”). By form dated September 3, 2019, petitioner sought a medical exemption for the student from the immunization requirements of PHL §2164. Therein, the student’s physician declared that the student required a medical exemption from the “Tetanus, Diptheria, Pertussis (DTaP, DTTP, Tdap)” vaccine (“Tdap vaccine”). In a section of the form asking the physician to “describe the patient’s contraindication(s)/precaution(s),” the physician wrote: “patient with tic disorder and his[tory] of Tourette syndrome after vaccinations with Dtap, Dpu in childhood. Possible reaction to the component of vaccine. 2.28.04.” In a section of the form inquiring as to the “[d]ate exemption ends (if applicable),” the physician wrote: “[n]eeds clearance from neurologist.”
According to petitioner, his request for a medical exemption “was sent to ... Dwight.” Although not entirely clear from the record, it appears that Dwight subsequently forwarded petitioner’s request to respondent for review. In a letter dated October 17, 2019, a physician and assistant commissioner with respondent’s Bureau of Immunization informed Dwight that “it [was her] opinion that there [was] not a valid medical contraindication to the [student] receiving [the] Tdap vaccine.” She thus “recommend[ed] ... that [the student’s] medical exemption request for Tdap vaccine be denied for the 2019-2020 school year.”
In an undated letter received on or about November 21, 2019, Dwight informed petitioner that the student’s “medical exemption request [was being] declined after it was reviewed and [Dwight was] advised by [respondent] that it [was] not considered a valid exemption.” Accordingly, Dwight notified petitioner that, “[a]s of December 16, 2019,” the student would be excluded from school “due to incomplete required school immunizations or a valid medical exemption for Tetanus, Diptheria, and Pertussis (Tdap) vaccine.” This appeal ensued. Petitioner’s request for interim relief was denied on December 23, 2019.
Petitioner argues that respondent’s denial of his medical exemption request was arbitrary and capricious because the request met the requirements of PHL §2164. Further, petitioner contends that respondent should be required to provide medical evidence supporting its denial of the student’s medical exemption. Petitioner seeks a determination that the student is exempt from receiving the Tdap vaccine for “at least 12 months” and until the student’s physician and neurologist determine that the Tdap vaccine “is no longer detrimental to his health.”
Respondent argues that the appeal must be dismissed because it is not a proper party to this proceeding, insofar as Dwight, not respondent, denied petitioner’s request for a medical exemption on the student’s behalf and excluded the student from school.
The appeal must be dismissed for failure to join Dwight, a necessary party. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934). Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).
Petitioner appeals a determination of Dwight denying his request for a medical exemption on behalf of the student and, thus, excluding the student from school. Pursuant to PHL §2164(7)(b) and Education Law §310(6-a), petitioner may appeal the decision to exclude the student from school to the Commissioner of Education; however, petitioner commenced this appeal against respondent, not Dwight. Respondent – a municipal public health agency – did not render any decision to exclude the student from school. Instead, as respondent asserts in its answer, it “merely provid[ed] an advisory opinion” to Dwight concerning whether the student was entitled to a medical exemption from the immunization requirements of PHL §2614. Indeed, the October 17, 2019 letter from respondent to Dwight was, on its face, an “opinion” and “recommendation” to deny the student’s request for a medical exemption, rather than a determination to exclude the student from attending Dwight. Accordingly, I lack jurisdiction over respondent pursuant to PHL §2164(7)(b).
Ultimately, Dwight – not respondent – rendered the final determination to deny petitioner’s request for a medical exemption and exclude the students from school. This is consistent with New York State Department of Health regulations implementing PHL §2164, which task a “principal or person in charge of a school” with considering medical exemption requests and deciding students’ eligibility to attend school pursuant to PHL §2164 (10 NYCRR §66-1.3). Although “[t]he principal or person in charge of the school may require additional information supporting [an] exemption,” this provision does not relieve the principal or person in charge of the school of his or her responsibility to approve or deny a medical exemption request (10 NYCRR §66-1.3[c]). Because petitioner did not execute service of the petition and notice of petition upon Dwight, the appeal must be dismissed for failure to join Dwight as a necessary party (Appeal of Munno, 57 Ed Dept Rep, Decision No. 17,201; Appeal of a Student with a Disability, 54 id., Decision No. 16,739; Appeal of Marson, 49 id. 295, Decision No. 16,031; Appeal of LaClair, 32 id. 594, Decision No. 12,924).
In light of this determination, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE