Appeal of M.M., on behalf of B.M., from action of the New York City Department of Health and Mental Hygiene regarding immunization.

Decision No. 18,354

(November 9, 2023)

Hon. Sylvia O. Hinds-Radix, Corporation Counsel, attorneys for respondent, Shlomit Aroubas, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges a determination of the New York City Department of Health and Mental Hygiene (“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. 

At all times relevant to this appeal, the student attended the Dwight School.  By form dated September 29, 2022, petitioner sought a medical exemption for the student from the Tetanus, Dipthereia, Pertussis (“Tdap”) vaccination.  In a section of the form requesting the basis for the exemption request, the physician stated that the student had an “[a]llergic reaction to [a] component of the vaccine” and identified the expected duration of the condition as “permanent.”  By letter dated November 25, 2022, respondent denied petitioner’s request.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 5, 2023.  

Petitioner argues that respondent incorrectly denied petitioner’s medical exemption request because administration of the Tdap vaccination “may be detrimental to [the student’s] health.”  For relief, petitioner requests a medical exemption from the Tdap vaccination for “at least 12 months and until it is determined by his physician and neurologist that the Tdap vaccine booster is no longer detrimental to his health.”

Respondent contends, among other arguments, that its denial of petitioner’s request was reasonable and supported by the evidence before it. 

First, I must address a procedural matter.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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 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]).  Pursuant to applicable DOH regulations,

A ... child [cannot be admitted] to school unless a person in parental relation to the child has furnished the school with … [a] signed, completed medical exemption form ... 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.

(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[1] 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 not met his burden of proving that respondent’s denial of his medical exemption request was arbitrary and capricious.  In the medical exemption request, a physician asserted that Tourette’s syndrome is a “precaution” identified on the Tdap “[m]anufacturing flyer.”  This assertion was rebutted by respondent’s Director of Epidemiology and Surveillance (“Director”), who explains that

[t]he package inserts for Tdap vaccines, Adacel and Boostrix ... refer to unstable or progressive neurologic condition as a precaution to vaccinations[.]  [They] do not refer to Tourette’s or tic disorder and do not refer to mild of stable neurologic conditions.

In this respect, petitioner has not proven that the student’s Tourette’s syndrome is “unstable or progressive.”  To the contrary, a 2019 report from a neurologist indicates that the student was diagnosed with Tourette’s syndrome “several years ago”; that his symptoms were “mild”; and that his “tics ha[d] improved[,] especially [his] vocal tics.”  Additionally, in October 2022, the student’s physician “confirmed ... that there [were] no new medical diagnos[e]s or symptoms at that time.”  Thus, petitioner has failed to meet his burden of proving a contraindication or precaution consistent with ACIP guidance or another nationally recognized evidence-based standard of care (see Appeal of O.E., 62 Ed Dept Rep, Decision No. 18,235; Appeal of V.T., 60 id., Decision No. 17,979).

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

THE APPEAL IS DISMISSED.

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