Decision No. 17,968
Appeal of M.P., on behalf of her son, A.P., from action of the New York City Department of Education regarding immunization.
Decision No. 17,968
(March 17, 2021)
James E. Johnson, Corporation Counsel, attorneys for respondent, Chlarens Orsland, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) that her son, A.P. (“the student”), is not entitled to a medical exemption from the immunization requirements of Public Health Law (“PHL”) §2164. The appeal must be dismissed.
The student began attending respondent’s schools during the 2018-2019 school year. In October 2018, petitioner requested a medical exemption on the student’s behalf from the varicella and the measles, mumps, and rubella (MMR) immunizations. Respondent forwarded the request to the New York City Department of Health and Mental Hygiene (“DOHMH”) (see Chancellor’s Regulation A-701[III][A][a]), and a physician employed by DOHMH’s Office of School Health (“OSH”) contacted the student’s pediatrician on October 24, 2018 to discuss the request. According to an affirmation submitted by the OSH physician, the student’s pediatrician expressed concerns about the student’s egg allergy and “prior history of fever following the administration of combination vaccinations, albeit with no severe reactions.” The OSH physician indicates that, after discussing the immunization guidelines published by the Center for Disease Control’s Advisory Committee on Immunization Practices (ACIP), which provide that “students with various non-vaccine allergies can still safely be immunized with rare modifications,” the student’s pediatrician “agreed to refer the [s]tudent to an [a]llergist.” The OSH physician subsequently denied petitioner’s medical exemption request, indicating that respondent would revisit the request if petitioner submitted additional information.
Later during the 2018-2019 school year, petitioner submitted information from the student’s allergist, including bloodwork and the results of skin testing. On April 18, 2019, the OSH physician spoke with the allergist, who, according to the OSH physician, recommended that the student not receive vaccines containing neomycin, “based on the parents’ report of contact reaction from topical neomycin.” The OSH physician indicates in her affidavit that, although the student’s records confirmed his food allergies, “the prior history of vaccine reactions as reported by the parents was not clear,” and the student’s vaccine reactions were “unconfirmed and not applicable to MMR and varicella vaccines since the student had no prior doses to report a reaction.” The OSH physician further states that “contact dermatitis following exposure to neomycin ... is not recognized as a contraindication to vaccination.” Nevertheless, the OSH physician recommended “that the [s]tudent be evaluated to receive vaccinations in a controlled setting in a pediatric allergy clinic to allay the parental concern.”
In a letter dated May 3, 2019, OSH’s health services coordinator (“OSH coordinator”) granted the student a medical exemption from the tetanus, diphtheria, pertussis (“DTaP”); hepatitis B; MMR; and varicella immunizations until June 30, 2019. The OSH physician explains in her affidavit that she granted this “temporary” medical exemption “for the remainder of the school term,” “[t]o allow the parents time to consider the option” of receiving vaccinations in a controlled setting.
On or about September 12, 2019, petitioner submitted a medical exemption request for the 2019-2020 school year on the student’s behalf, again seeking an exemption from the MMR and varicella immunizations. The student’s physician wrote that the student has a “[s]evere chicken meat [and] egg yolk allergy.” In an attached letter, dated September 6, 2019, the student’s physician explained that the student “suffers from severe food allergies, chicken meat mostly.” The student’s physician indicated that the student had been “challenged with chicken” on August 12, 2019 and “developed severe allergic reaction requiring ... use [of the student’s] Epi Pen.” The student’s physician recommended that “MMR [be] contraindicated this year.”
By letter dated October 30, 2019, the OSH coordinator informed petitioner that a physician at OSH had reviewed the medical exemption request and determined that the records submitted did “not meet [the] standards needed to exempt [the student] from receiving immunizations.” Petitioner appealed this determination to OSH’s medical director. The record indicates that the medical director spoke with the student’s physician during review of petitioner’s appeal.
By letter dated February 27, 2020, the OSH coordinator denied petitioner’s appeal. The record indicates that respondent excluded the student from school as of March 3, 2020. This appeal ensued. Petitioner’s request for interim relief was denied on April 10, 2020.
Petitioner argues that administration of the MMR and varicella vaccines would place the student in “medical danger” given his severe allergies to food, nuts and neomycin. Petitioner also argues that the student “had generalized allergic reactions to vaccinations on several occasions in the past ... which included IVP, DTaP and Hep B.” Petitioner also appears to argue that respondent’s denial of her September 2019 request was irrational because she submitted the “same supporting medical documentation” as the “prior year” when her request “had been approved.” Petitioner seeks a determination that the student is entitled to a medical exemption from the immunization requirements of PHL §2164.
Respondent argues that petitioner failed to provide sufficient evidence that the required vaccinations would be detrimental to the student’s health. Specifically, respondent asserts that the “factors noted by the [s]tudent’s physicians are not valid contraindications under ACIP guidelines.”
First, I must address the scope of my review. With her appeal, petitioner submits two additional medical exemption request forms, dated March 20 and 24, 2020, as well as accompanying letters from the student’s physician and allergist. There is no explanation in the record as to whether these medical exemption requests were submitted to respondent or, if so, whether respondent rendered a determination with respect thereto. An appeal pursuant to Education Law §310 is appellate in nature, and the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of V.N., 59 Ed Dept Rep, Decision No. 17,742; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861). Thus, any claims concerning the March 2020 medical exemption requests and related documentation are premature and cannot be addressed in this proceeding (see Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,025).
Turning to the merits, PHL §2164 generally requires that children between the ages of two months and eighteen years be immunized against certain diseases and provides that children may not attend school in the absence of acceptable evidence that they have been immunized. The law provides one exception to immunization, whereby immunization is not required if a physician licensed in New York “certifies that such immunization may be detrimental to a child’s health” (PHL §2164). The exemption applies “until such immunization is found no longer to be detrimental to the child’s health” (PHL §2164).
In August 2019, the New York State Department of Health amended the definition of the phrase “[m]ay be detrimental to the child’s health,” as set forth in its regulations, to mean “that a physician has determined that a child has a medical contraindication or precaution to a specific immunization consistent with ACIP guidance or other nationally recognized evidence-based standard of care” (10 NYCRR §66-1.1[l]).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
Petitioner has failed to meet her burden of proving that respondent’s determination was arbitrary or capricious. Respondent asserts, and the ACIP guidelines reflect, that the student’s allergies as reported by his pediatrician and allergist – including allergies to nuts, eggs and chicken and contact dermatitis following exposure to neomycin – are not contraindications or precautions for the vaccinations that the student requires (see Centers for Disease Control, “Contraindications and Precautions: General Best Practice Guidelines for Immunization: Best Practices Guidance of the Advisory Committee on Immunization Practices (ACIP),” https://www.cdc.gov/vaccines/hcp/acip-recs/general-recs/contraindication... [last accessed Mar. 15, 2021]). Although petitioner asserts that the student has suffered “generalized allergic reactions to vaccinations in the past,” she does not offer any evidence, such as an affidavit from the student’s physician, to establish that any aspect of the student’s current condition constitutes a contraindication or precaution for any of the vaccinations the student requires consistent with ACIP guidance or other nationally recognized evidence-based standard of care (10 NYCRR §66-1.1[l]). Therefore, petitioner has failed to meet her burden of proof.
Additionally, to the extent petitioner suggests that respondent acted arbitrarily or capriciously by “granting” her request during the 2018-2019 school year and denying her September 2019 request, this claim is without merit. As noted above, the OSH physician indicates that she granted the May 2019 exemption solely as a temporary measure to give petitioner time to consider the suggestion – which the OSH physician communicated to the student’s allergist – that the student receive his immunizations under the supervision of an allergist. Petitioner has not submitted a reply or other evidence to rebut this contention. Thus, I find that respondent has adequately explained its reasoning and that its denial of the September 2019 request was neither arbitrary nor capricious.
While I understand petitioner’s concerns, on this record, petitioner has failed to prove that respondent’s February 27, 2020 determination was arbitrary or capricious. Accordingly, the appeal must be dismissed (see Appeal of E.Y., 60 Ed Dept Rep, Decision No. 17,891; Appeal of J.S. and D.S., 55 id., Decision No. 16,821; Appeal of D.F., 50 id., Decision No. 16,132).
THE APPEAL IS DISMISSED.
END OF FILE
 Respondent indicates that DOHMH procedures permit such an appeal.
 The OSH physician further notes that, although the student tested “above normal” with respect to a latex allergy, patients with latex-induced anaphylaxis can be vaccinated in ways to avoid exposure to latex in a vaccine stopper and, in any event, the MMR and varicella immunizations “do not contain latex in vaccine packaging.”