Appeal of I.K.W., on behalf of his child S.W., from action of The School at Columbia University regarding immunization.

Decision No. 18,060

(November 29, 2021)

Patricia Finn, Attorney P.C., attorneys for petitioner, Patricia Finn, Esq., of counsel

Friedman Kaplan Seiler & Adelman LLP, attorneys for respondent, Timothy M. Haggerty, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges a determination of The School at Columbia University (“respondent”) that his child (“the student”) is not entitled to a medical exemption from the immunization requirements of Public Health Law (“PHL”) § 2164.  The appeal must be dismissed.

On February 3, 2021, the student was accepted to respondent.  In connection with her acceptance, petitioner submitted a medical exemption request form, signed by the student’s physician, seeking exemptions from all required immunizations.  The physician indicated that the student was “medically exempt indefinitely from vaccines per CDC guidelines” because “vaccine shedding creates risks, complications, and interferences with [the student’s sister’s] life-saving brain tumor treatment.”  In support of the exemption request, petitioner submitted a letter dated March 9, 2020 from Dr. Slesarev, an oncologist treating the student’s sister.  He explained that the student’s sister was undergoing cancer treatment and had a compromised immune system.  Dr. Slesarev stated that the student needed a medical exemption to immunization requirements because she could “shed” vaccine viruses and put her sister at risk of infection. 

On February 5, 2021, petitioner emailed respondent to inquire as to the status of the student’s medical exemption request.  Respondent advised petitioner that the request would need to be reviewed by respondent’s medical director and requested additional information as to why the student sought an exemption from all vaccines, not just vaccines that contain live virus.  On February 15, 2021, the medical director advised petitioner via email that respondent would be forwarding the exemption request to the New York City Bureau of Immunization at the New York City Department of Health and Mental Hygiene (“DOHMH”) for review and determination.  By email dated June 1, 2021, petitioner received a copy of DOHMH’s decision dated May 21, 2021 denying the medical exemption request.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 12, 2021.

Petitioner argues that respondent’s denial of the student’s medical exemption request was arbitrary and capricious.  Petitioner contends that respondent had no rational basis to deny the student’s medical exemption request because it fully complied with PHL § 2164 (8) as well as Centers for Disease Control (“CDC”) and New York State Department of Health (“DOH”) regulations.[1] Petitioner seeks a determination that the student is entitled to a medical exemption from the immunization requirements of PHL § 2164.

Respondent contends that petitioner has failed to demonstrate that the student is entitled to a medical exemption.  Respondent also argues that its decision to deny the request for a medical exemption was neither arbitrary nor capricious, fully compliant with applicable laws and regulations, supported by a rational and sound basis and consultation with DOHMH, and consistent with current CDC guidance. 

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 the immunization requirement:  immunization is not required if a New York-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.”  Pursuant to applicable DOH regulations,

A principal or person in charge of a school shall not admit a child to school unless a person in parental relation to the child has furnished the school with … [a] signed, completed medical exemption form approved by the NYSDOH or NYC Department of Education from a physician licensed to practice medicine in New York State certifying that immunization may be detrimental to the child's health, containing sufficient information to identify a medical contraindication to a specific immunization and specifying the length of time the immunization is medically contraindicated.  The medical exemption must be reissued annually. The principal or person in charge of the school may require additional information supporting the exemption.

(10 NYCRR 66-1.3 [c]).  The phrase “[m]ay be detrimental to the child’s health” means “that a physician has determined that a child has a medical contraindication or precaution to a specific immunization consistent with ACIP[2] 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).

Petitioner has failed to meet his burden on appeal of proving that respondent’s decision to deny the student’s medical exemption request was arbitrary or capricious.  As an initial matter, I note that pursuant to 10 NYCRR 66-1.3 (c), the principal or person in charge of a school may require additional information supporting the exemption request.  I also find that respondent, through consultation with its medical director and DOHMH, reasonably obtained guidance from DOHMH concerning petitioner’s request for a medical exemption (10 NYCRR 66-1.3 [c]; Appeal of B.D., 61 Ed Dept Rep, Decision No. 18,016).[3] 

Petitioner’s request for a medical exemption did not provide any evidence from a physician licensed in New York State that the student has a medical contraindication or precaution to a specific immunization consistent with ACIP guidelines or another nationally recognized evidence-based standard of care.  Petitioner’s exemption request included two documents: (1) a Medical Request for Immunization Exemption form completed by Dr. John Meer, a New York State licensed physician, who identified himself as the student’s primary care practitioner; and (2) a letter from Dr. Vladimir Slesarev, who identified himself as Chief Medical Officer of “LifeSpan Health Network.”  Dr. Meer’s request stated that the student “needs a medical exemption because vaccine shedding creates risks, complications and interference with [the student’s sister]’s life-saving brain tumor treatment, ongoing indefinitely.”  Dr. Meer did not identify any relevant ACIP guidance, merely attaching Dr. Slesarev’s letter.  There is no proof in the record that Dr. Slesarev is a New York licensed physician, and a public records search confirms that Dr. Slesarev is not licensed as a physician in New York State. 

Further, Dr. Slesarev’s letter, which Dr. Meer relied upon in his medical exemption request, cites claims that are inconsistent with or inaccurately characterize CDC guidelines, particularly with respect to the CDC’s guidance on the vaccination of individuals with immunocompromised family members.  Contrary to the statements in Dr. Slesarev’s letter, CDC guidance recommends the vaccination of household members of individuals who are immunocompromised to reduce the risk of infection in the immunocompromised individual.  This is reflected on the face of the Medical Request for Immunization Exemption form itself, which states, “[c]ontact with immunosuppressed persons by a healthy individual is not a valid contraindication for exemption and will not be accepted.”   Therefore, petitioner has failed to meet his burden of proving that respondent’s decision to deny the student’s medical exemption request was arbitrary and capricious.

While I am empathetic to petitioner’s concerns for his children, given the plain language of 10 NYCRR 66-1.1 (l), I am constrained to find that petitioner failed to meet his 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). 

In light of this disposition, I need not address the parties’ remaining contentions.

 THE APPEAL IS DISMISSED. 

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