Appeal of C.C., on behalf of A.L., from action of the New York City Department of Education Brooklyn School District16 and Julia Sykes, Health Service Coordinator, regarding immunization.

Decision No. 16,526

(August 26, 2013)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, David Alan Rosinus, Jr., Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the New York City Department of Education1 (“DOE” or “respondent”), by its Health Service Coordinator Julia Sykes (“coordinator”), that her daughter, A.L., is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164. The appeal must be dismissed.

Petitioner’s daughter, A.L., attended school at P.S.26 in Community School District 16 in respondent’s school district during the 2011-2012 school year. By letter dated October 26, 2011, petitioner sought an exception to certain immunizations required pursuant to PHL §2164, stating that “based on my religious convictions I chose not to continue having my child vaccinated.” Petitioner asserted that she is a practicing Muslim of the Nation of Islam and follows the teachings of that religion. Respondent’s coordinator avers that she did not receive petitioner’s letter until the fall of 2012. At that time, the coordinator reviewed A.L.’s immunization records and determined that A.L. had previously received all of her required vaccinations except for the MMR-2 vaccine, which protects against mumps, measles and rubella.

By memorandum dated October 22, 2012, the coordinator requested additional information from petitioner to determine whether a religious exemption was warranted. Specifically, the coordinator requested that petitioner submitted additional documents to explain the basis for her exemption in her own words; indicate whether she was opposed to all vaccinations or only to certain vaccinations; and state the religious basis for her specific opposition to the MMR-2 vaccine. Petitioner subsequently submitted supplemental documentation which included an unsigned letter written by a leader of the Nation of Islam addressing immunization which is publicly available on the Internet, a signed Declaration of Vaccination Exemption, dated November 28, 2012, and a blank Vaccination Guarantee in which the doctor or nurse administering a vaccination “guarantees” that the vaccination will not cause certain diseases or death and that, if “any physical or mental damage” results from the vaccination, the doctor or nurse will pay the “victim of the family” $1 million.

By memorandum dated December 7, 2012, the coordinator denied petitioner’s immunization exemption request on the grounds that petitioner’s submitted documentation was inadequate and did not substantiate that petitioner holds genuine and sincere religious beliefs which are contrary to immunization. Petitioner was informed that she could appeal the determination by arranging an interview with a DOE Health Liaison (“liaison”). Petitioner did so and met with the liaison on or about January 9, 2013. Petitioner also provided a January 7, 2013 letter from her minister confirming that petitioner and A.L. are members of a mosque in Brooklyn and are “under religious guidance which advises our families against receiving any vaccinations at any time.”

By memorandum dated January 11, 2013, subsequent to petitioner’s interview with the liaison, the coordinator denied petitioner’s appeal, stating that petitioner still had not submitted sufficient information or documentation to substantiate a finding that she holds genuine and sincere religious beliefs which are contrary to immunization. This appeal ensued. Petitioner’s request for interim relief was denied on February 26, 2013.

Petitioner seeks a religious exemption from the immunization requirements of PHL §2164 and, specifically, from the MMR-2 vaccine. Petitioner asserts that she converted to the Muslim faith in 2010 and that she holds genuine and sincere religious beliefs that are contrary to her daughter receiving the MMR-2 vaccine.

Respondent asserts that the denial of petitioner’s request for a religious exemption was proper because petitioner’s objection to the MMR-2 vaccine is not based on genuinely and sincerely held religious beliefs. Respondent further contends that the appeal must be dismissed for improper service.

1. Although petitioner recites both the New York City Department of Education and Brooklyn School District 16 together as one unit in the caption, she is challenging the determination of the Department of Education’s Health Service Coordinator in its Office of School Health.

I must first address several procedural matters. Section 275.13 of the Commissioner’s regulations requires each respondent to answer a petition within 20 days from the time of service. Extensions may be granted in the discretion of the Commissioner upon timely application therefore (8 NYCRR §276.3). Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No.15,589).

I note that the petition herein was purportedly served on February 8, 2013, thus requiring that respondent’s answer be served by February 28, 2013. However, the answer was not served until March 5, 2013. Respondent asserts that the delay is due to the fact that service of the petition was improper and caused confusion regarding the service dates of the pleadings. Respondent alleges that it received notice of petitioner’s appeal from my Office of Counsel, which directed respondent to serve affidavits in opposition to petitioner’s application for interim relief by February 20, 2013. Respondent timely served the affidavits. Respondent further alleges that, consequently, it inferred that its answer was due to be served by March4, 2013, pursuant to Commissioner’s regulations. However, even affording respondent until March 4, 2013 to serve its answer, the answer was not served until March 5, 2013, and respondent failed to establish good cause for the delay. Consequently, the answer is untimely and has not been considered in this appeal. Nevertheless, respondent’s affidavits and exhibits in opposition to petitioner’s stay request were timely served, are properly part of the record and, to the extent that they are responsive to the petition, I have considered them.

The appeal must be dismissed, however, for improper service. Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530,Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

As proof of service of the petition upon respondent, petitioner submits a notarized statement indicating that the petition was served upon “District 16” on February 8,2013 by leaving it with Elsie Moore, who is an “admin asst in said district ... duly authorized to accept service. “However, in its affirmation in opposition to petitioner’s request for interim relief, respondent asserts that service upon the administrative assistant is not in compliance with Commissioner’s regulations. Indeed, an administrative assistant is not one of the individuals set forth in §275.8(a) of the Commissioner’s regulations upon whom service on a board of education may properly be effected. Nor does the record indicate that Ms. Moore is “a person in the office of the superintendent who has been designated by the board of education to accept service.” Petitioner submits no reply or other competent evidence to refute respondent’s claim of improper service. Furthermore, I note that petitioner’s affidavit of service was notarized on February 7, 2013, one day prior to her alleged service on respondent.

When there is no proof that an individual is authorized to accept service on behalf of respondent, service is improper and the appeal must be dismissed (Appeal of Willis, 50 Ed Dept Rep, Decision No. 16,211;Appeal of Terry, 50 id., Decision No. 16,117; Appeal of Villanueva, 49 id. 54, Decision No. 15,956). On this record, I cannot conclude that petitioner properly served a copy of the petition on respondent in accordance with§275.8(a) of the Commissioner’s regulations. Accordingly, the appeal must be dismissed.

Because I am constrained to dismiss the appeal on procedural grounds, I need not address the parties’ remaining contentions.

END OF FILE

2.Respondent’s affirmation in opposition identifies the individual asElise Moore.