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Decision No. 17,778

Appeal of D.L., on behalf of N.L., from action of the Board of Education of the City School District of the City of Albany regarding immunization.

Decision No. 17,778

(October 30, 2019)

BERLIN., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Albany (“respondent”) that his child, N.L. (“the student”), is not entitled to attend school without meeting the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

At all times relevant to this appeal, the student attended school in respondent’s district.  Prior to the events described in this appeal, respondent granted the student a religious exemption from the immunization requirements of PHL §2164.

On June 13, 2019, the Legislature repealed the religious exemption.  In a letter dated July 3, 2019, respondent’s superintendent informed petitioner that the student was required to obtain all required vaccinations in accordance with a schedule set forth in New York State Department of Health guidance.  It appears from the record that the student did not obtain the required immunizations in accordance with this schedule.  Thereafter, respondent excluded the student from school due to his lack of required immunizations.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 6, 2019.

Petitioner argues that the student should be permitted to attend school without required vaccinations based on his sincerely held religious beliefs.

Respondent argues that the appeal must be dismissed for lack of jurisdiction and is otherwise without merit.

At all times relevant to the events leading to this appeal, PHL §2164 included provisions authorizing an exemption based on religious beliefs to required immunizations.  Specifically, PHL §2164(9) provided:

[t]his section shall not apply to children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to the practices herein required, and no certificate [of immunization] shall be required as a prerequisite to such children being admitted or received into school or attending school.

However, on June 13, 2019, Chapter 35 of the Laws of 2019 was enacted, effective immediately, which repealed subdivision nine of §2164 of the Public Health Law, thus eliminating the religious exemption to immunization requirements to attend school.[1]

Therefore, to the extent petitioner requests a religious exemption from the immunization requirements of PHL §2164, 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  With the enactment of Chapter 35 of the Laws of 2019, effective June 13, 2019, no student may be exempted from required immunizations based on religious beliefs, such as the exemption claimed by petitioner in this appeal.  The legislative intent of Chapter 35 is to protect the public health by ending non-medical exemptions from immunization (see Sponsor’s Mem, Bill Jacket, L 2019, ch 35).  As a result, the relief sought by petitioner – an order granting a religious exemption to the immunization requirements of Public Health Law §2164 - may no longer be obtained, rendering this matter academic.  Consequently, petitioner’s request for a religious exemption must be dismissed as moot.

To the extent petitioner alleges that the student was improperly excluded from school, this argument is without merit.  Proof of immunization against certain diseases is generally required for a child to be admitted to school (PHL §2164[6]).  Petitioner does not contest respondent’s assertion that the student lacks certain required immunizations.  Therefore, respondent’s refusal to admit the student was rational and, indeed, required by the plain language of PHL §2164(6).[2]




[1] PHL §2164(7)(a), as also amended by Chapter 35 of the Laws of 2019, provides, “[n]o principal, teacher, owner or person in charge of a school shall permit any child to be admitted to such school, or to attend such school, in excess of fourteen days, without [a certificate of immunization] or some other acceptable evidence of the child’s immunization against poliomyelitis, mumps, measles, diphtheria, rubella, varicella, hepatitis B, pertussis, tetanus, and, where applicable, Haemophilus influenzae type b (Hib), meningococcal disease, and pneumococcal disease; provided, however, such fourteen day period may be extended to not more than thirty days for an individual student by the appropriate principal, teacher, owner or other person in charge where such student is transferring from out-of-state or from another country and can show a good faith effort to get the necessary certification or other evidence of immunization or where the parent, guardian, or any other person in parental relationship to such child can demonstrate that a child has received at least the first dose in each immunization series required by this section and has age appropriate appointments scheduled to complete the immunization series according to the Advisory Committee on Immunization Practices Recommended Immunization Schedules for Persons Aged 0 through 18 Years.”


[2] Petitioner does not request, or contend that the student is eligible for, a medical exemption from the immunization requirements of PHL §2164.