Appeal of M.H., on behalf of her child, from action of the Board of Education of the Horseheads Central School District regarding immunization.

Decision No. 18,374

(January 16, 2024)

Ferrara Fiorenza, P.C., attorneys for respondent, Wendy K. DeWind, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Horseheads Central School District (“respondent”) that her 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.

The student attended respondent’s schools at all times relevant to this appeal.  By form dated August 17, 2023, petitioner sought a medical exemption for the student from the Tetanus, Diphtheria, Pertussis (“Tdap”) vaccination.  The request stated that the student had a reaction to the vaccine with regression of developmental milestones and identified the expected duration of the condition as “N/A.”  Respondent’s medical director reviewed the request and sought guidance from the New York State Department of Health (“DOH”) in connection therewith.

In a letter dated September 19, 2023, DOH recommended that “based on the information provided, according to the CDC’s Advisory Committee on Immunization Practices (ACIP), regression of developmental delay milestones is not a contraindication to [the vaccine].”  In a letter dated September 26, 2023, respondent informed petitioner that the medical exemption request was denied.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 4, 2023. 

Petitioner generally contends that respondent erred in rejecting her request for a medical exemption from the immunization requirements of PHL § 2164.  For relief, petitioner requests that the student be granted a medical exemption from the immunization requirements of PHL § 2164 and permitted to attend respondent’s schools.

Respondent contends that petitioner has not met her burden of proving a clear legal right to the relief requested.

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 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 … 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 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 her burden of proving that respondent’s denial of her medical exemption request was arbitrary or capricious.  Petitioner’s medical exemption request asserted that the Tdap vaccine previously caused the student to experience developmental regression.  In the petition, she details the student’s regressions as a toddler and her efforts to treat them.  She submits no evidence, however, that this history constitutes a medical contraindication or precaution to the Tdap vaccine consistent with ACIP or another nationally recognized evidence-based standard of care.  By contrast, respondent’s medical director reviewed petitioner’s request, consulted with DOH, and determined that the ACIP guidance did not identify developmental delay as a precaution or contraindication for the Tdap vaccine.  Thus, I am constrained to conclude that petitioner has failed to meet her burden of proof (Appeal of O.E., 62 Ed Dept Rep, Decision No. 18,235; Appeal of Y.W., 61 id., Decision No. 18,084; Appeal of V.T., 60 id., Decision No. 17,979).

THE APPEAL IS DISMISSED.

END OF FILE