Appeal of C.H., on behalf of her son J.H., from action of the New York City Department of Education regarding immunization and home instruction.

Decision No. 16,465

(April 8, 2013)

The Law Offices of Ira S. Newman, attorneys for petitioner, Robert S. Powers, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Charles Carey, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“NYCDOE” or “respondent”) that her son, J.H., is not entitled to a medical exemption from the immunization requirements of Public Health Law (“PHL”) §2164 or to home instruction. The appeal must be dismissed.

The record indicates that J.H. was registered to attend school at P.S. 36 during the 2011-2012 school year. In the fall of 2011, petitioner submitted requests for a medical exemption for J.H. from the Hepatitis B vaccine due to “acquired hypothyroidism,” “abnormal weight gain” and “possible immunodeficiency.” Together with these requests, petitioner submitted a letter from a doctor in an “internal medicine and infectious diseases” practice who stated that J.H. “suffers from reoccurring allergic bronchitis and allergic reactions to vaccines. He has not yet received the Hepatitis B vaccine and is being sent for blood work to evaluate subsets.” The doctor concluded that “[u]ntil a full evaluation of [J.H.’s] condition can be completed, [he] is unable to receive the Hepatitis B vaccine.” Petitioner also submitted a letter from J.H.’s pediatrician, who stated that J.H. was being treated for chronic asthma, for which he takes “controller” medication and which is “very often exacerbated.” The pediatrician concluded that “[i]t is medically unadvisable at this time for [J.H.] to receive these vaccinations.”

By letter dated January 23, 2012, the Medical Director (“director”) of respondent’s Office of School Health (“OSH”) denied petitioner’s exemption request. The director stated that, after a review of the documentation submitted by petitioner and conversations with J.H.’s doctors, “no contraindication to Hepatitis B has been identified nor has any documentation from an Immunologist been provided. There is no medical reason as per ... national guidelines ... as to why [the] Hepatitis B vaccine should not be administered.”

Despite having denied petitioner’s medical exemption request, the record indicates that respondent provided home instruction to J.H. for the remainder of the 2011-2012 school year. However, the record also indicates that Dr. Gabriel Adrien, a supervising physician employed by the New York City Department of Health and Mental Hygiene (“DOHMH”) and assigned to OSH, recommended that “any subsequent [home instruction] requests contain updated information as to the Student’s condition and whether he was being seen by a pulmonologist for his asthma.”

During the fall of 2012, petitioner made several additional requests for home instruction.  [1]  In or about October 2012, petitioner submitted a “Medical Request for Home Instruction” form, which was completed and signed by J.H.’s pediatrician on or about September 12, 2012. The pediatrician requested 18 weeks of home instruction due to J.H.’s “chronic exacerbation of asthma” and hyperthyroidism. The doctor explained that J.H.’s asthma symptoms “can be a distraction to this student and his classmates as it makes it difficult to focus in class.” Together with the request form, petitioner also submitted a handwritten note from the pediatrician, which stated that J.H. is on “controller meds” and that “[i]n this case it is probably better to do home schooling because [J.H.] misses so many days of school that he can probably not learn what is to be taught.”

Dr. Adrien affirms that, during the fall of 2012, petitioner submitted additional requests for home instruction, which included documentation from J.H.’s pediatrician’s office, indicating that, although J.H. had been referred to a pulmonologist, no follow-up was documented in his record. By letter dated November 28, 2012, petitioner’s request for home instruction was denied.   [2]

This appeal ensued. Petitioner’s request for interim relief was denied on January 11, 2013.

Petitioner argues that respondent’s January 23, 2012 denial of her request for a medical exemption and November 28, 2012 denial of her request for home instruction for J.H. were arbitrary and capricious. She seeks an order declaring that J.H. is entitled to home instruction and to attend school without having to receive the Hepatitis B vaccination “if and when he is medically able.”

Respondent generally denies that J.H. is entitled to a medical exemption or to home instruction. Respondent also contends that the appeal is untimely and moot and that petitioner has failed to carry her burden of proof.

I must first address several procedural issues. By letter dated January 4, 2013, NYCDOE submitted a supplemental affirmation from Dr. Adrien with attached exhibits. The Commissioner, in his discretion, may permit the service and filing of additional affidavits, exhibits and other supporting papers (see 8 NYCRR §276.5). Petitioner does not oppose this request. Accordingly, I will accept the supplemental affirmation and exhibits.

Petitioner also submitted a reply in this matter. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). 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.

Respondent argues that petitioner’s challenge to its January 2012 denial of a medical exemption must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). Petitioner did not commence the instant appeal until December 21, 2012, which is well beyond the 30-day time limit. In her reply, petitioner asserts that this claim is timely because J.H. was not actually “denied access” to school based on his failure to receive the Hepatitis B vaccine until November 28, 2012, when her request for home instruction was denied. However, as stated above, an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of. In this case, petitioner objects to the denial of her request for a medical exemption to the Hepatitis B vaccination, a decision which occurred in January 2012.

Petitioner also argues in her reply that respondent’s “blanket denial” of her medical exemption request is a “continuing violation” and that, “once the denial of continuing Home Instruction was given, it clearly brought up for appeal both the Home Instruction issue and the continuing issue with respect to the Hepatitis B vaccination.” I disagree. The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901). The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]). Respondent’s denial of petitioner’s request for a medical exemption from the Hepatitis B vaccination is a single decision and its effects – prohibiting J.H. from attending school without receiving the Hepatitis B vaccine, which is required by law – are not intrinsically unlawful. Petitioner alleges that, after denying her medical exemption request, respondent informed her that she could not file new exemption requests. This claim is unsupported by the record. Indeed, respondent denies this allegation and, other than her own allegations, petitioner has produced no evidence to support her claim. For the reasons described above, petitioner’s claim is untimely and must be dismissed.

Respondent also argues that because requests for medical exemptions in its district must be submitted annually, petitioner’s claim must be dismissed as moot because the 2011-2012 school year has ended and petitioner has not submitted an exemption request for the 2012-2013 school year. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). Although not clearly articulated, petitioner appears to assert that this claim is “capable of repetition, yet evading review” and is therefore justiciable (Southern Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 US 498, 515 [1911]). Specifically, petitioner argues in her reply that “any appeal from [the] denial [of a medical exemption request] would not be decided before the end of the school year, at which point the exemption would cease to be valid and the issue would be moot.”

The U.S. Supreme Court and the Second Circuit have recognized that claims that are “capable of repetition, yet evading review” provide an exception to the mootness doctrine. In Russman v. Board of Education of the Enlarged City School District of the City of Watervliet (“Russman”), for example, the Second Circuit stated:

The capable-of-repetition principle applies only “where the following two circumstances are simultaneously present: (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (internal quotation marks omitted) (Russman, 260 F3d 114, 119 [2001]).

On this record, I cannot conclude that petitioner’s claim is justiciable. As described above, respondent denied petitioner’s request by letter dated January 23, 2012 – approximately five months prior to the end of the 2011-2012 school year - and petitioner has not submitted a request for the 2012-2013 school year. Specifically, because respondent’s decision involves a request for a medical exemption from immunization, it is important to note that the health profile of a growing and developing school-age child can change substantially from one school year to the next (see e.g., Appeals of L.W., 52 Ed Dept Rep, Decision No. 16,416 [recognizing in the context of a request for a medical exemption from immunization that medical science and a patient’s health profile – particularly in the case of growing children - can change over time]). Indeed, as noted in footnote one, petitioner has submitted with her petition a new “Medical Request for Immunization Exemption for Hepatitis B Immunization” form dated September 14, 2012. On the form, J.H.’s pediatrician explains that petitioner and her mother “have both had life threatening reactions to vaccinations secondary to diagnosis of autoimmune disorders. We will refrain from administering Hepatitis B vaccinations to [J.H.] at this time as it may be detrimental to the child’s health given the strong family history of autoimmune disorders.” The record indicates that this request differs in substance from petitioner’s 2011 request, but that it has not been submitted to respondent for consideration. Accordingly, on this record, I cannot conclude that there is a reasonable expectation that, should petitioner submit an up-to-date medical exemption request in the future, she would be subject to the same action by respondent. This claim must therefore be dismissed as moot.

I now turn to petitioner’s objection to respondent’s November 28, 2012 denial of home instruction for J.H. Chancellor’s Regulation A-170 states that home instruction is provided “to students who cannot be accommodated in a regular school facility because of a medical/physical condition” (Chancellor’s Regulation A-170[I][A]). To be eligible for such services, a student “must have a condition which renders him/her temporarily unable to attend his/her customary school placement for an anticipated duration of at least four weeks” (Chancellor’s Regulation A-170[I][B][1][b]). A request for home instruction services for a medical/physical condition must include “a physician’s request on official letterhead that includes the diagnosis and expected duration of the condition” (Chancellor’s Regulation A-170[I][B][1][c]).

The record indicates that, in October 2012, J.H.’s pediatrician requested 18 weeks of home instruction due to J.H.’s “chronic exacerbation of asthma” and hyperthyroidism. As noted above, the pediatrician explained that J.H.’s asthma symptoms “can be a distraction” and make “it difficult to focus in class.” Together with the request form, petitioner also submitted a handwritten note from the pediatrician, which stated that J.H. is on “controller meds” and that “[i]n this case it is probably better to do home schooling because [J.H.] misses so many days of school that he can probably not learn what is to be taught.”

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). Petitioner has not carried her burden of proof on this claim. She generally objects to respondent’s denial of her October 2012 home instruction request on the grounds that such decision, in conjunction with its denial of her medical exemption request, was arbitrary and capricious and “present[s] an on-going denial of access to instruction....” However, petitioner submits no evidence or arguments in support of her claim regarding the denial of home instruction and appears to reason that, because respondent denied her medical exemption request, it must provide J.H. with home instruction. The record does not support such argument. As described above, respondent explains that petitioner’s request for home instruction was insufficient to establish that J.H. “cannot be accommodated in a regular school facility because of a medical/physical condition” as required by Chancellor’s Regulation A-170. Indeed, the materials submitted with petitioner’s request indicate only that J.H.’s asthma was a “chronic condition” that could, in his pediatrician’s opinion, be a “distraction” and that it “is probably better to do home schooling.” Other than her conclusory allegations, petitioner submits no evidence or arguments in her reply or otherwise to establish that respondent’s determination was arbitrary and capricious on this record.

THE APPEAL IS DISMISSED.

END OF FILE.

 

 

[1]   Together with her verified petition, petitioner submits a “Medical Request for Immunization Exemption for Hepatitis B Immunization” form dated September 14, 2012 on which J.H.’s pediatrician states that petitioner and her mother “have both had life threatening reactions to vaccinations secondary to diagnosis of autoimmune disorders. We will refrain from administering Hepatitis B vaccinations to [J.H.] at this time as it may be detrimental to the child’s health given the strong family history of autoimmune disorders.” Respondent denies that this request was ever submitted to NYCDOE. Moreover, in her petition, petitioner challenges only respondent’s January 23, 2012 denial of her medical exemption request and November 28, 2012 denial of her home instruction request.

 

[2]   Dr. Adrien also affirms that petitioner submitted a letter dated November 30, 2012 in which a pediatrician stated that J.H.’s last visit to a pulmonologist was in April 2011. According to Dr. Adrien, he consulted with the OSH doctor reviewing this submission, who stated that “a history of severe persistent asthma under poor control would require frequent care by a specialist under national guidelines.” In consultation with Dr. Adrien, the reviewing OSH doctor “recommended that home instruction not be offered once again, and noted that a request for renewal of home instruction ‘must come from a pulmonologist.’”