Decision No. 17,979
Appeal of V.T., on behalf of her daughter B.T., from action of the Board of Education of the Southwestern Central School District regarding immunization.
Decision No. 17,979
(April 1, 2021)
Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel
ROSA., Commissioner.--In two separate appeals, petitioner challenges the determination of the Board of Education of the Southwestern Central School District (“respondent”) that her daughter, B.T. (“the student”), is not entitled to a medical exemption from the immunization requirements of Public Health Law (“PHL”) § 2164. Because these appeals arise out of the same facts and circumstances and present similar issues of fact and law, they are consolidated for decision. The appeals must be dismissed.
The student enrolled in elementary school in respondent’s district at the start of the 2018-2019 school year. By letter dated June 20, 2019, the principal of the student’s school (“principal”) advised petitioner of recent amendments to PHL § 2164 and the need to comply with the vaccination requirements for the upcoming 2019-2020 school year.
By letter dated August 29, 2019, the principal notified petitioner that the student lacked one or more doses of five of the eight immunization series required by PHL § 2164: (1) tetanus, diphtheria, and pertussis (DTaP); (2) polio; (3) measles, mumps, and rubella (MMR); (4) hepatitis B; and (5) varicella. The principal further indicated that, if petitioner did not provide proof of the student’s immunization by September 23, 2019, the student would be excluded from school.
On or about September 4, 2019, petitioner submitted a request for a medical exemption on behalf of the student, signed by a physician assistant. The physician assistant indicated that the student required an exemption to five vaccines – haemophilus influenzae type b (Hib); polio; hepatitis B; DTaP; and pneumococcal conjugate vaccine (PCV) – and that the student was “allergic to vaccines” and had a “history of coma following vaccines.” The physician assistant did not seek an exemption from the MMR or varicella vaccines, which the principal had indicated the student required.
Respondent’s school physician reviewed the request. In an affidavit, the school physician indicates that he had determined the medical exemption request “failed to set forth valid contraindications/precautions” to the vaccines for which it sought exemptions. The school physician further explains that the request did not seek an exemption from MMR and varicella, “even though those these vaccines [were] required,” and that the request was signed by a physician assistant rather than a physician licensed in New York, as required by PHL § 2164 (8). While the record is unclear, it appears that the student was excluded from school on or about September 29, 2019.
On or about October 22, 2019, petitioner submitted a second medical exemption request on behalf of the student, this time signed by a physician. Although the physician failed to identify any specific immunizations from which the student required exemptions, the physician indicated that the student had two seizures following immunization and would see a neurologist in the “near future” to “determine whether she [could] have the shots or not.” The school physician reviewed this request and, according to his affidavit, determined that the “contraindications and/or precautions set forth did not comport with current accepted medical practice standards,” as defined by the Centers for Disease Control (“CDC”) and its Advisory Committee on Immunization Practices (“ACIP”). He also asserts in the affidavit that the request “failed to identify any vaccine” from which the student required an exemption. According to petitioner, the district “requested further documentation” in response to her October 22, 2019 request.
On or about October 30, 2019, petitioner submitted a third medical exemption request, signed by the same physician who had signed the second request, seeking exemptions from all eight required vaccinations. The physician described the student’s contraindication or precaution as “seizures following [i]mmunizations.” The school physician reviewed the request and again concluded that “[t]he contraindication and/or precaution set forth did not comport with accepted medical practice standards” as defined by the CDC or ACIP.
On or about October 31, 2019, petitioner submitted a fourth medical exemption request on behalf of the student, again seeking exemptions from all eight required vaccinations. This request was signed by a physician licensed in Pennsylvania, who indicated that the student had a “[h]istory of seizures after childhood immunizations.” The school physician reviewed this request and determined that it “failed to set forth valid contraindications/precautions for each vaccine for which a medical exemption was sought.” The school physician also noted that the fourth request was not signed by a physician licensed in New York.
The school physician explains in his affidavit that the medical exemption requests and records presented “no objective medical evidence ... to establish a relationship between the vaccinations and the seizures.” The school physician further indicates that he consulted with a physician from the New York State Department of Health (“DOH”) in considering the student’s case. According to the school physician, the DOH physician “agreed with [his] medical opinion” and “suggested” that petitioner “provide specific information on what specific vaccines and problems [the] student had with supporting medical documentation in order to be considered for a vaccine exemption.”
By letter dated October 31, 2019, the principal rejected petitioner’s third and fourth exemption requests, informing petitioner that the student would “continue to be excluded from school until such time as she receive[d] her required immunizations or a valid medical exemption [was] approved by the [d]istrict.” By email dated November 5, 2019, petitioner asked the principal for “the reasons why each exemption ha[d] been denied.” By email dated November 5, 2019, the principal informed petitioner that her medical exemption requests had been denied “because they [were] lacking specific information on what [the student was] allergic to within each vaccination along with supporting medical documentation.” Additionally, the principal attached a letter from the school physician “outlining why [the student] ha[d] been excluded from school.”
These appeals ensued. Petitioner’s requests for interim relief were denied on January 7, 2020 and March 20, 2020, respectively.
Petitioner argues that the student’s receipt of immunizations would result in “a life threatening allergic reaction” and “could cause death.” Petitioner additionally asserts that the student twice experienced “full blown seizure[s]” following vaccination as an infant. Further, petitioner contends that respondent’s school physician has a “clear conflict of interest” because, she asserts, he personally administered a vaccination to the student in 2012 “over [her] objection” and “without proper testing,” resulting in one of the student’s seizures. Petitioner thus contends that the school physician’s “personal involvement” in this matter is “the motivation behind his refusal to accept the findings of [the student’s] medical providers.” In her second appeal, petitioner also appears to argue that respondent’s determinations were arbitrary and capricious because PHL § 2164 is “inapplicable if any physician licensed to practice medicine in NYS certifies that such immunization may be detrimental to a child’s health.” Petitioner seeks a determination that the student is entitled to a medical exemption from the immunization requirements of PHL § 2164.
Respondent contends, among other things, that it complied with all applicable laws and regulations and that petitioner has failed to establish that its determination to deny the student a medical exemption was arbitrary or capricious.
First, I must address the procedural matters. With respect to the first of these appeals, petitioner originally filed a petition that was served on respondent on December 2, 2019 and received by my Office of Counsel on December 6, 2019 (“original petition”). In a letter dated December 6, 2019, my Office of Counsel returned petitioner’s submission for lack of verification. The letter informed petitioner that, if she served a “corrected petition” within two weeks (i.e., by December 20, 2019), the appeal would be deemed to have been initiated on the original date of service – December 2, 2019. Although petitioner partially complied with this instruction, insofar as she served a petition with proper verification upon respondent on December 20, 2019 (“amended petition”), petitioner also amended this petition to address a fifth medical exemption request dated December 4, 2019, which she attached to the amended petition.
Under the Commissioner’s regulations, there is no authority for a party to amend pleadings in an appeal to the Commissioner pursuant to Education Law § 310 (Appeal of Lovinsky and Simpson, 57 Ed Dept Rep, Decision No. 17,422; Application of the Buffalo Parent Teacher Organization, 57 id., Decision No. 17,150; Appeals of James, 54 id., Decision No. 16,646). Accordingly, while I have accepted the amended petition to the extent that it includes an affidavit of verification and, thus, corrects the original petition, I have not considered petitioner’s new assertions or evidence concerning her December 4, 2019 request for a medical exemption.
The second of these consolidated appeals must be dismissed for improper service. Section 275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).
According to the affidavit of service submitted with the second appeal, the petition was served upon Patrick Bautista, who is identified only as an “Administrator.” In an affidavit, Mr. Bautista indicates that he is an “Account Clerk” for respondent and is “not authorized to accept service of legal papers.” Respondent’s district clerk also submits an affidavit, in which she indicates that Mr. Bautista “is not an individual authorized to accept service on behalf of the [d]istrict” and that she was “never served” with a copy of the petition for petitioner’s second appeal. Accordingly, petitioner’s second appeal must be dismissed for improper service (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,943; Appeal of J.W. and K.W., 59 id., Decision No. 17,815).
I also note that, even if petitioner had properly served the petition and notice of petition upon respondent, the second appeal would be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). Petitioner commenced her second appeal on March 10, 2020, which is well over 30 days after respondent rejected the third and fourth medical exemption requests. Petitioner does not set forth good cause, or any cause, for her delay. Accordingly, petitioner’s second appeal would be dismissed as untimely if it were not dismissed for improper service as discussed above.
Turning to the merits of petitioner’s first appeal, 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 a single exemption to the immunization requirements, whereby an 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, DOH 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 establishing the facts upon which he or she 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).
On this record, petitioner has failed to meet her burden of proving that respondent arbitrarily or capriciously determined that the student was not entitled to a medical exemption. Pursuant to DOH regulations, a request for a medical exemption from immunization must “contain sufficient information to identify a medical contraindication to a specific immunization”; the regulations further provide that “a principal or person in charge of a school may require additional information supporting the exemption” (10 NYCRR 66-1.3 [c]). Thus, as an initial matter, I find that respondent, through consultation with its school physician and a DOH physician, reasonably obtained guidance concerning petitioner’s requests for medical exemptions from DOH and requested that petitioner submit additional information in support thereof (10 NYCRR 66-1.3 [c]; see also Appeal of E.C., 58 Ed Dept Rep, Decision No. 17,638; Appeal of D.F., 50 id., Decision No. 16,132). Based in part on such consultations, respondent denied the medical exemption requests submitted on behalf of the student, advising petitioner that the requests “lack[ed] specific information on what [the student] is allergic to within each vaccination along with supporting medical documentation.”
Petitioner has not offered any evidence to contradict respondent’s conclusion. Notably, petitioner does not offer additional evidence to support her requests for a medical exemption on behalf of the student, such as an affidavit or other more detailed statement from one of the student’s physicians containing sufficient information to establish that the student currently has a precaution or a contraindication to any of the eight required vaccinations consistent with ACIP guidance or other nationally recognized evidence-based standards of care (10 NYCRR 66-1.1 [l]; see Appeal of E.Y., 60 Ed Dept Rep, Decision No. 17,891).
Although petitioner alleges that the student “[i]mmediately went into a full blown seizure” after receiving vaccinations as an infant and that “[d]uring that period [the student’s] reactions to vaccinations were thoroughly discussed as she went through testing,” petitioner does not indicate what vaccines the student received at that time, what results were obtained via testing, or what conclusions were reached with respect to the student’s potential allergies to vaccines or vaccine components. Indeed, the only supporting medical evidence that petitioner submits is a “Vaccine Adverse Event Reporting System” form dated October 12, 2011, indicating that the student suffered an adverse event at 9:55 p.m. on October 11, 2011 after receiving four vaccinations at 11:00 a.m. that morning. Notably, although this form indicates that “ER notes” and “[r]elevant diagnostic tests/laboratory data” were “[a]ttached,” petitioner did not include any such attachments with her petition. As such, the evidence in the record does not contain sufficient details concerning the 2011 adverse event, including whether it was, in fact, a seizure.
In addition, as respondent notes, while petitioner asserts that the student “[i]mmediately went into a full blown seizure” after she received vaccinations on October 11, 2011, the adverse event form indicates that the student’s adverse reaction occurred approximately 11 hours later. Petitioner has not submitted a reply with respect to her first appeal or otherwise addressed this discrepancy.
Finally, petitioner has provided no evidence that respondent’s school physician was motivated by personal bias or, in fact, administered vaccines to the student in 2012 when the student experienced a second adverse reaction. In its answer, respondent expressly denies that the school physician administered any vaccines to the student or has a conflict of interest in this matter. Therefore, petitioner has not established the facts supporting this allegation.
While I am empathetic to petitioner’s concerns, she has failed to show that respondent’s determination was arbitrary or capricious. Thus, for the reasons described above, the appeals 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 APPEALS ARE DISMISSED.
END OF FILE
 Previously, PHL § 2164 (9) included provisions authorizing an exemption to required immunizations based on religious beliefs. On June 13, 2019, however, the Legislature enacted Chapter 35 of the Laws of 2019, effective immediately, which repealed subdivision nine of PHL § 2164, thus eliminating the religious exemption. It is unclear from the record whether the student had a religious exemption during the 2018-2019 school year.
 The record is unclear as to when, or how, respondent informed petitioner that it had denied her initial request for a medical exemption.
 The copy of the October 31, 2019 letter contained in the record does not include any attachment. It appears likely, however, that the attachment was a report from the school physician also dated October 31, 2019.
 The second appeal attaches an email dated February 3, 2020, in which the principal advises petitioner that her “most recent medical exemption ha[d] been reviewed and ha[d] been denied.” It appears that this pertains to petitioner’s fifth medical exemption request, which cannot be considered in this appeal for the reasons described above. But even assuming that it could, petitioner commenced the second appeal 36 days after the request was denied.
 The U.S. District Court for the Northern District of New York recently upheld the validity of these regulations in Doe v. Zucker, US Dist Ct, ND NY, No. 1:20 civ 840, Sannes, J., 2021.