Appeal of B.D., on behalf of her child, from action of the Board of Education of the City School District of the City of Ithaca regarding immunization.

Decision No. 18,016

(July 8, 2021)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Ithaca (“respondent”) that her son (“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 the time of the events that gave rise to this appeal, petitioner’s son was a first-grade student in respondent’s district.  On July 1, 2019, petitioner submitted a New York State Department of Health (“DOH”) medical exemption statement to respondent seeking a medical exemption from vaccinations for the student.  In a July 23, 2019 email, respondent’s Coordinator of Health Services (“coordinator”) informed petitioner that respondent was unable to accept the medical exemption statement because it was signed by a nurse practitioner rather than a physician, as required by law, and invited petitioner to re-apply with the appropriate signature. 

On or about August 5, 2019, petitioner re-applied for the medical exemption.  The form was signed by a physician and sought exemptions from seven of the eight required vaccines.[1]  In the section of the form that asked for a description of the student’s contraindication(s)/precaution(s) to the required vaccinations, the physician indicated that the student “had a very high fever and difficulty breathing after Hepatitis B vaccination.”

On September 16, 2019, the coordinator sent the medical exemption form and a copy of the student’s immunization record to a DOH employee, seeking review of the student’s medical exemption request.  In an affidavit, the coordinator asserts that respondent’s Medical Director (“the medical director”) asked her to do so in order “to obtain additional input regarding the validity of the application.”  The coordinator further explains that respondent “obtain[s] input from the Department of Health with respect to many of the applications for medical exemptions ... submitted to the District.”

In a letter to the coordinator dated October 18, 2019, the Director of the DOH Bureau of Immunization (“DOH director”) recommended denial of petitioner’s medical exemption request.  Specifically, the DOH director’s letter noted the following:

[Petitioner’s] medical exemption form stated that the student had high fever and difficulty breathing after hepatitis B vaccine administration.  However, the immunization record provided does not document any history of having received the hepatitis B vaccine.  Further, a history of an adverse reaction to hepatitis B is not a valid contraindication to this student receiving polio, DTaP, MMR, or varicella vaccines ....  The information provided does not support [a finding] that immunizing this student with polio, DTaP, MMR, or varicella at this time may be detrimental to this student’s health.

According to an affidavit submitted by respondent’s medical director, because it was unclear whether the student had ever received the hepatitis B vaccine, she recommended to the superintendent that he “err on the side of caution” with respect to that vaccination.  She further asserts that she recommended the superintendent “deny Petitioner’s request in all other respects because the application did not satisfy the stringent criteria set forth in [DOH regulation].”  

            By letter dated November 21, 2019, the superintendent informed petitioner that the form she submitted on behalf of the student

... does not support a medical exemption from school immunization requirements with the exception of Hepatitis B.  Specifically, the medical exemption statement submitted lacks sufficient information of a medical contraindication or precaution consistent with ACIP [Advisory Committee on Immunization Practices] guidance or any other nationally recognized evidence-based standard of care for other vaccinations.

Accordingly, the superintendent’s letter informed petitioner that her “application for exemption from vaccination for [the student] [was] approved with respect to Hepatitis B but denied for all other required vaccinations.”  The superintendent further informed petitioner that the student would be excluded from school beginning December 2, 2019 if he did not receive at least the first dose of all required vaccinations.

In a December 6, 2019 email to the superintendent and other district employees, petitioner sought to confirm her understanding that the student would “receive no services from the district even though they [we]re included in his IEP” if the student did not attend a district school.  In a response sent four days later via email, the superintendent indicated that the district would not “diverge from its long-standing policy of requiring homeschooled students to come into our schools to receive their special education services.”  This appeal ensued.  Petitioner’s request for interim relief was denied on December 31, 2019.

Petitioner asserts that the district’s decision to deny the student a medical exemption was arbitrary and capricious; that respondent was not legally authorized to approve or deny medical exemptions; that, because the medical exemption request she submitted to respondent was issued before DOH adopted implementing regulations, those regulations do not apply to her request; and that respondent’s decision not to provide the student with the special education services described in his Individualized Education Program (IEP) deprived him of his constitutional right to a public education.

Respondent argues that the petition should be dismissed because it was not properly verified; that the petition fails to state a claim upon which relief can be granted; and that the Commissioner lacks jurisdiction over some of petitioner’s claims.

Initially, I must address a procedural issue.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  However, the petition submitted to my Office of Counsel contains the requisite verification.  A defect in the verification of the copy of a pleading served upon a party is insufficient to bar filing of a pleading, provided that the original pleading submitted to the Department for filing includes a proper verification (Appeal of Johnson, 46 Ed Dept Rep 67, Decision No. 15,443; Appeal of O.W., 43 id. 150, Decision No. 14,949; Appeal of Goldin, 43 id. 20, Decision No. 14,904).  Accordingly, I decline to dismiss the petition for lack of proper verification.

Additionally, petitioner’s claim regarding the provision of special education services to the student must be dismissed for lack of jurisdiction.  Claims brought to enforce rights arising under the Individuals With Disabilities Education Act (“the IDEA”) must be addressed through the due process provisions of the IDEA (20 USC § 1415) and Education Law § 4404 or the State complaint procedure outlined in section 200.5 of the Commissioner’s regulations; such claims may not be addressed in an appeal brought pursuant to Education Law § 310 (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,375; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232; Appeal of a Student with a Disability, 46 id. 258, Decision No. 15,500).  Therefore, petitioner’s claim regarding the provision of special education services must be dismissed (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,859; Appeal of a Student with a Disability, 40 id. 170, Decision No. 14,451).

I must also address the scope of the record before me in this appeal.  The petition includes an attachment, Exhibit F, containing specific allegations as to why the student should be exempt from immunizations other than hepatitis B.  Petitioner also submits a letter from a physician dated 2017 in which the physician states that the student “should have a medical exemption from vaccines ....”  There is no evidence that these submissions were presented to respondent for its consideration; as such, they cannot be considered in addressing the rationality of respondent’s determination on appeal (Appeal of J.K., 60 Ed Dept Rep, Decision No. 17,967).  Petitioner remains free to submit this information to respondent for its consideration at the local level.

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 a single 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 [8]).  The exemption applies “until such immunization is found no longer to be detrimental to the child’s health” (PHL § 2164 [8]).

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]).[2]

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).

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.  As an initial matter, I find that respondent, through consultation with its medical director and a DOH physician, reasonably obtained guidance from DOH concerning petitioner’s request for a medical exemption (10 NYCRR 66-1.3 [c]; see also Appeal of V.T., 60 Ed Dept Rep, Decision No. 17,979; Appeal of E.C., 58 id., 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 request submitted on behalf of the student, advising petitioner that the request “lack[ed] sufficient information of a medical contraindication or precaution consistent with ACIP guidance or any other nationally-recognized evidence-based standard of care for other vaccinations.”

Petitioner has offered no evidence to contradict respondent’s conclusion.  Although petitioner alleges that the student “had a very high fever and difficulty breathing after Hepatitis vaccination,” she does not offer any additional evidence to support her request, 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 required vaccinations (10 NYCRR 66-1.1 [l]; see also Appeal of V.T., 60 Ed Dept Rep, Decision No. 17,979; Appeal of E.Y., 60 Ed Dept Rep, Decision No. 17,891).  Additionally, petitioner’s specific allegations concerning the hepatitis B vaccination are moot because respondent exempted the student from the requirement that he receive the hepatitis B vaccine.

While I am empathetic to petitioner’s concerns and the student’s circumstances, given the plain language of 10 NYCRR 66-1.1 (l), I am constrained to find that petitioner has failed to meet her burden of proof.  Consequently, the appeal must be dismissed (see Appeal of V.T., 60 Ed Dept Rep, Decision No. 17,979; Appeal of E.Y., 60 id., Decision No. 17,891; Appeal of P.K., 59 id., Decision No. 17,802).

I have considered petitioner’s remaining arguments and find them to be without merit.

THE APPEAL IS DISMISSED.

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