Appeal of J.R., on behalf of his daughter P.R., from action of the Board of Education of the New York City Department of Education regarding immunizations.

 

Appeal of J.R., on behalf of his daughters M.R. and K.R., from action of the Board of Education of the New York City Department of Education regarding immunizations.

Decision No. 18,023

(August 4, 2021)

             James E. Johnson, Corporation Counsel, attorney for respondent, Chlarens Orsland, Esq., of counsel

ROSA., Commissioner.--In two separate appeals, petitioner appeals the determination of the New York City Department of Education (“respondent”) that his three children, P.R., M.R., and K.R. (“the students”), are not entitled to medical exemptions from the immunization requirements of Public Health Law (“PHL”) § 2164.  Because the appeals arise out of the same circumstances and present similar issues of fact and law, they are consolidated for decision.  The appeal must be dismissed.

The students, who lack the immunizations required to attend school, resided in respondent’s district at all times relevant to this appeal.  Prior to the 2019-2020 school year, the students received religious exemptions from the vaccination requirements of PHL § 2164.  PHL § 2164 (9) previously included a provision authorizing an exemption to required immunizations based on religious beliefs.  However, Chapter 35 of the Laws of 2019 was enacted on June 13, 2019, effective immediately, and it repealed subdivision nine of PHL § 2164, thus eliminating the religious exemption.

The record reflects that petitioner submitted medical exemption requests for the students on or about September 3, 2019.  While these requests are not part of the record, petitioner has submitted letters signed by the students’ physician that appear to have been attached to the exemption requests.  In letters dated September 9 and September 11, 2019, the students’ physician indicated that each of the three students “should not ever” have the “DTaP/Tdap, HepatitisB, HPV, Meningococcal (MEnACWY), MMR, Polio, Varicella or other immunization.”  Regarding student P.R., in a letter dated September 9, 2019, the students’ physician indicated that she has “four serum anomalies,” including a “high” serum Reverse T3 reading, a “low” level of Glutathione, “abnormal” Vitamin D readings “indicating significant metabolic issues,” and an “HLA DR15 gene.”  Regarding student K.R., in a letter dated September 11, 2019, the students’ physician indicated that she has an “extremely low” Vitamin D level, a “high” serum Reverse T3 reading, an “abnormal” Glutathione level “indicating significant metabolic issues,” and, in addition, that she “manifests gut permeability issues through 20 different allergen sensitivities, with oats and white oak particularly high in sensitivity.”  Regarding student M.R., in a letter dated September 11, 2019, the students’ physician indicated that she has a “very low” level of Glutathione, an “abnormal” Vitamin D reading, “very low” serum T3 reading indicating “significant metabolic issues and hypothyroidism,” and “elevated inflammation markers from high TNF-alpha and IL-8 cytokines.”  

With respect to all three students, the students’ physician opined that each “has a predisposition to hyper-respond to vaccine adjuvants that result in auto-immunity conditions such as Lupus or ASIA due to her HLA DR15 gene.”  He further indicated that each student “has a deep-seated family history of severe auto-immune conditions,” explaining that the students “share the DR15 gene variant that makes them prone to hyper-respond to vaccine adjuvants like their mother.”  He wrote that their mother “suffered a loss of 45% of her kidney function due to HEP-B immunization induced Lupus nephritis and adjuvant hyper-response as marked by high serum ANA and ds-DNA.”  Additionally, in one letter, the students’ physician indicated that he was treating the students’ older sibling “for a Meningococcal immunization injury.”  Because of this medical history, the students’ physician stated that he had “a concern [for the students] about severe adverse reaction potential and auto-immunity as experienced by [their] sibling that shares the DR15 gene.”  As to student P.R., he further  opined that should she have any of the required vaccinations, “her lymphatic system and kidneys may not be able to eliminate these components even with additional IV treatments to repair the inevitable metabolic depletion.”

Upon receipt of the medical exemption requests, a physician from the Office of School Health for the New York City Department of Health and Mental Hygiene (“OSH”) contacted the students’ physician, who explained that the students’ family had a “strong family history of autoimmune disease, and an unspecified sibling had had an anaphylactic reaction to an unspecified vaccine in the past, and each has hypothyroidism.”  In an affidavit submitted by respondent, the Agency Medical Director of OSH (“agency medical director”) avers that the assigned OSH doctor noted that the students’ physician did not appear to be the children’s primary care doctor, and that the students’ physician “was relying on the parent’s recitation of [the students’ family medical history] and had no confirming records to submit to us.”  Further, the agency medical director avers that the assigned OSH doctor checked the students’ health records on file, which had been completed by the family pediatrician, and noted that the family pediatrician had indicated “well child” for each of the students on the most recent records.  The agency medical director explained that this category means the “child has no chronic diseases as reported by the pediatrician.”  Finally, the agency medical director avers that “the factors noted by [the students’ physician] are not valid contraindications under ACIP guidelines.”  

By letters dated September 4 and October 3, 2019,[1] respondent informed petitioner and his wife that an OSH physician reviewed the medical exemption requests and determined that the “records provided by your child’s health care provider(s) do not meet standards needed to exempt your child from receiving immunization(s) that are required to attend school.”  Petitioner appealed these denials to the agency medical director as permitted by OSH procedure (see Appeal of M.P., 60 Ed Dept Rep, Decision No. 17,968).  The agency medical director avers that the assigned OSH doctor reviewed the results of “lab tests” submitted by petitioner with the appeal and “found that [the students’ physician] wrote out results that were contradicted [by] the lab reports,” indicating the “noted high T3” was “within normal limits; low glutathione level and results not found, extremely (sic) low vitamin D level and report low.”  The record reflects that the assigned OSH doctor spoke with the students’ physician again on September 17, 2019.  The agency medical director avers that the students’ physician “ultimately acknowledged that the tests did not establish a valid contraindication to vaccination.”  The agency medical director thus concluded “that neither the new records nor the family history as relayed to [the students’ physician] by the family met the ACIP criteria as a genuine medical contraindication.”  She discussed this conclusion with the students’ physician in a telephone call on November 25, 2019 and avers that “[h]e offered no additional information sufficient to warrant a different determination.”  In separate letters dated February 27, 2020, respondent denied petitioner’s appeals.  These appeals ensued.  Petitioner’s requests for interim relief were denied on March 16, 2020.[2]

Petitioner contends that the students require a medical exemption because “they have genetic markers that predispose them to allergic, auto-immune reactions from the adjuvants found in vaccines” and a family history of adverse reactions to immunizations.  He argues that respondent’s denials of the medical exemption requests were arbitrary and capricious because the students’ physician’s “declaration and supporting evidence [were] not contested” by respondent’s doctor and, additionally, because “there was no current outbreak of a condition covered by these shots such as measles.”  Petitioner further asserts that they were “not afforded constructive evaluation” of their medical exemption requests and that “[r]epeated requests to review provided medical evidence with our physician were ignored.”  Lastly, petitioner contends respondent’s denials violated “federal 9th amendment protections of bodily autonomy.”  He seeks a declaration that the students are entitled to attend school without obtaining the required immunizations.

Respondent contends that petitioner failed to provide sufficient evidence that the required vaccinations would be detrimental to the students’ health.  Specifically, respondent asserts that petitioner did not identify conditions of the students’ health that constitute valid contraindications under the standards identified by the Centers for Disease Control’s Advisory Committee on Immunization Practices (“ACIP”).

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:  immunization is not required if a licensed physician certifies that immunization may be detrimental to a child’s health (PHL § 2164 [8]).  The relevant portion of PHL § 2164 (8) provides:

If any physician licensed to practice medicine in this state certifies that such immunization may be detrimental to a child’s health, the requirements of this section shall be inapplicable until such immunization is found no longer to be detrimental to the child’s health.

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” 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 [1]).

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 his burden of proving that respondent’s determinations were arbitrary or capricious.  Petitioner argues that the students’ genetic make-up and family medical history place them at risk of over-reactions to vaccine adjuvants.  Respondent, however, considered this argument as well as the students’ physician’s letters, laboratory reports, and information that the students’ physician relayed in the three telephone conversations he had with OSH doctors.  On appeal, petitioner has not offered evidence, such as an affidavit from the students’ physician, containing sufficient information to show that the students currently have a medical contraindication or precaution to any of the eight required vaccinations consistent with ACIP guidance or another nationally recognized evidence-based standard of care (10 NYCRR 66-1.1 [l]).  The evidence submitted by petitioner—consisting primarily of copies of the students’ allergy and laboratory reports, copies of medical records of the students’ mother and their older sibling, and a medical article on vaccines—was considered by respondent and is insufficient to establish that the students merited medical exemptions from immunization. 

Petitioner’s assertions that his family was not afforded “constructive evaluation” of their medical exemption requests and that “[r]epeated requests to review provided medical evidence with our physician were ignored” are not supported by the record.  As evidence, petitioner submits letters dated September 30 and October 17, 2019 addressed to the “Health Services Coordinator & Medical Director at Office of School Health” reiterating his concerns and stating that, as of a date several days preceding the letter, the students’ physician had “not ha[d] a constructive conversation” regarding the students’ medical records with the assigned OSH doctor.  Although it is unclear as to whether respondent specifically responded to these letters, OSH physicians had three conversations with the students’ physician about the submitted material, including one conversation in which the students’ physician “ultimately acknowledged that the tests did not establish a valid contraindication to vaccination.”  On this record, I find that petitioner has had sufficient opportunity to provide evidence supporting the requests for medical exemptions (see Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,954; Appeal of K.N.N.M. and E.A.Y., 52 id., Decision No. 16,410).

Finally, petitioner claims that respondent’s determinations were arbitrary and capricious because “there [i]s no current outbreak of a condition covered by these shots such as measles” and that respondent’s denial actions “violates federal 9^th amendment protections.”  In essence, petitioner poses a facial challenge to the mandatory vaccination requirements of PHL § 2164.  An appeal to the Commissioner, however, is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319; Appeal of C.S., 49 id. 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810).  Accordingly, I decline to address petitioner’s challenges to PHL § 2164.

While I am empathetic to the students’ circumstances, petitioner has failed to show that respondent’s determinations were arbitrary or capricious.  Therefore, 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 IF FILE