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Decision No. 17,780

Appeal of J.B., on behalf of his son J.B., from action of Faith Heritage School regarding immunization.

Decision No. 17,780

(October 30, 2019)

BERLIN., Interim Commissioner.--Petitioner appeals the determination of Faith Heritage School (“Faith Heritage” or “respondent”) that his child, J.B. (“the student”), is not entitled to attend school without meeting the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

The student attended Faith Heritage, a nonpublic school, at all times relevant to this appeal.  Although unclear from the record, it appears that the student was excluded from Faith Heritage at some point during the summer of 2019 based upon his lack of all required immunizations.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 28, 2019.

Petitioner argues that a parent should have the right to choose whether to immunize his or her child.  Petitioner states that he has chosen not to immunize the student based on negative reactions that the student’s siblings have had to immunizations and petitioner’s research.

Respondent states, in an affidavit signed by its head of school,[1] that it “would be pleased” for the student to continue attending its school, but that it is required to follow Department of Health guidelines regarding immunization requirements.

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However, on June 13, 2019, Chapter 35 of the Laws of 2019 was enacted, effective immediately, which repealed subdivision nine of §2164 of the Public Health Law, thus eliminating the religious exemption to immunization requirements to attend school.[2]

Accordingly, to the extent that petitioner seeks a religious exemption, 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.  Here, petitioner apparently seeks a religious exemption so that the student may continue attending school.  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 may no longer be obtained, rendering this matter moot.  Consequently, to the extent petitioner seeks a religious exemption, the appeal must be dismissed.

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).

Finally, petitioner does not appear to request, or contend that the student is eligible for, a medical exemption from the immunization requirements of PHL §2164.  However, even if the petition could be so construed, there is no evidence in the record indicating that petitioner has requested a medical exemption from respondent.  Therefore, any request for a medical exemption presented for the first time in this appeal would be premature and subject to dismissal (see Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,765).




[1] This affidavit was submitted together with the petition and, therefore, is part of the record and has been considered.


[2] 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.”