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Decision No. 16,875

Appeal of K.G., on behalf of his daughter N.G., from action of the New York City Department of Education regarding immunization.

Decision No. 16,875

(February 10, 2016)

Zachary Carter, Corporation Counsel, attorney for respondent, Carolyn E. Kruk, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) that his daughter, N.G., is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed. 

During the 2012-2013 school year, petitioner’s daughter attended school in respondent’s school district.  Pursuant to PHL §2164(9), petitioner requested a religious exemption for his daughter “from any further immunization requirements for school entry because all or some immunizations are contrary to our beliefs.”

Respondent’s Health Service Coordinator (“coordinator”) denied petitioner’s request for a religious exemption, determining that the documentation he submitted was “inadequate to warrant an exemption and does not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization.”  The coordinator further noted that “[N.G.] has all of the required vaccines except for ‘Tdap’ booster.”   

Petitioner appealed that determination, submitted supplemental documentation and met with a designated district liaison who asked several questions related to petitioner’s opposition to immunizations and the religious basis for his beliefs.  According to respondent, during the interview, petitioner stated that he is “a practicing Christian trying to live under God’s commandments and, having done a lot of research three or four years ago, came to believe that the practice of vaccination is contrary to his religious beliefs.”  The liaison reported the results of the interview to respondent’s coordinator for consideration in relation to petitioner’s appeal.

Thereafter, the coordinator denied petitioner’s appeal and notified petitioner that “[t]he documentation you submitted and the information provided during the appeal interview do not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization.”  This appeal ensued and petitioner’s request for interim relief permitting his daughter to attend school during the pendency of the appeal was denied.

Petitioner maintains that he has sincerely held religious beliefs against immunizing the student and that respondent’s denial of his exemption request was arbitrary and capricious.  Petitioner also contends that respondent’s “two-step process of decision making” is “unreasonable and arbitrarily done.”  Petitioner seeks a religious exemption for the student pursuant to PHL §2164.

Respondent maintains that its determination was not arbitrary or capricious but was in all respects proper because petitioner failed to establish that his objections to immunizations are based on genuinely and sincerely held religious beliefs.  Respondent asserts that petitioner has failed to meet his burden of proof.

The appeal must be dismissed as moot.  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).

Respondent submits an affidavit from its coordinator averring that petitioner’s daughter subsequently received the Tdap vaccine immunizing her against tetanus, diptheria and pertussis.  According to the record, the only required immunization the student lacked was the Tdap vaccine.  Consequently, the matter is moot, warranting dismissal.

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