Appeal of P.K., on behalf of A.K., from action of the Board of Education of the Averill Park Central School District regarding immunization.

Decision No. 17,802

(December 10, 2019)

Honeywell Law Firm PLLC, attorneys for respondent, Michael W. Gadomski, Esq., of counsel.

TAHOE., Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Averill Park Central School District (“respondent”) that her child (“the student”) is not entitled to a medical exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

Prior to the events described in this appeal, petitioner and the student resided in Georgia.  According to the record, the student began experiencing seizures in December 2009.  In May 2010, the student suffered a seizure on a school playground that required hospitalization.  Petitioner asserts that the student did not experience seizures after 2010.  At some point thereafter, petitioner and the student moved to respondent’s district.

By form dated August 29, 2019, petitioner sought a medical exemption from the immunization requirements of PHL §2164 for the student.  The medical exemption form described the student’s contraindications as “vaccines triggering seizures in patient.  Family history of vaccines triggering seizures in uncle.”  Following a review of the medical exemption form, by letter dated September 4, 2019, respondent requested additional information from petitioner.  Petitioner provided respondent with additional information in the form of copies of medical records and letters from physicians.

Following a review of the medical exemption form and medical records, respondent determined that there was not sufficient information to support a medical exemption for the student.  Accordingly, the student was excluded from school beginning September 18, 2019.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 11, 2019.

Petitioner argues that respondent erred in denying the student’s medical exemption because of the student’s medical condition, the student’s history of seizures, and her familial history of seizures.  Specifically, petitioner asserts that the student has optic neuritis, which is correlated to vaccination, and that there is a family history of seizures caused by vaccinations.  She also argues that the student is being denied her “14th Amendment Right of an equal education” by being excluded from school.

Respondent counters that the petition should be dismissed insofar as petitioner makes constitutional arguments.  Respondent also argues that its decision to deny the student a medical exemption was not arbitrary or capricious.  According to respondent, petitioner provided no evidence that the student received a vaccination prior to the onset of a seizure.  Respondent also maintains that the Centers for Disease Control’s Advisory Committee on Immunization Practices (ACIP) guidelines do not list a family history of seizures as a contraindication or precaution to commonly used vaccines.

First, to the extent petitioner claims that respondent’s actions deprived her of her “14th Amendment Right of an equal education,” an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319; Appeal of C.S., 49 id. 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319).  Accordingly, to the extent the petition raises constitutional issues, these claims must be dismissed.

Turning to the merits, PHL §2164 generally requires that children between the ages of two months and eighteen years be immunized against certain diseases and provides that children may not attend school in the absence of acceptable evidence that they have been immunized.  The law provides an exception to immunization:  immunization is not required if a licensed physician certifies that immunization may be detrimental to a child’s health (PHL §2164[8]).  The relevant portion of PHL §2164(8) provides:

If any physician licensed to practice medicine in this state certifies that such immunization may be detrimental to a child’s health, the requirements of this section shall be inapplicable until such immunization is found no longer to be detrimental to the child’s health.

In August 2019, the New York State Department of Health amended the definition of the phrase “[m]ay be detrimental to the child’s health” to mean:

that a physician has determined that a child has a medical contraindication or precaution to a specific immunization consistent with ACIP guidance or other nationally recognized evidence-based standard of care (10 NYCRR §66-1.1[1]).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Here, I find that petitioner has failed to meet her burden of proving that respondent’s determination was arbitrary or capricious.  Petitioner’s medical exemption form stated that vaccines triggered seizures in the student and there was a family history of vaccines triggering seizures in the student’s uncle.  In response, respondent’s physician indicated that the student could be entitled to a medical exemption if petitioner could establish a causal link between administration of a vaccination and the seizures.  Respondent’s physician requested additional information from petitioner; specifically, “hospital records as described for the seizure in association with a vaccination” that would “[i]deally ... include an assessment from a neurological specialist confirming the conclusions reached.”

In response, petitioner submitted a letter from the doctor who had signed the medical exemption form.[1]  In the letter, the doctor explained that the student

received one Hepatitis B vaccination as a newborn.  As a toddler, she had febrile seizures.  When the [student] was seven years old, she had a non febrile seizure in close time sequence upon receiving a vaccine....  Please also note that her Maternal Uncle has a history of exhibiting seizures with vaccinations.  As part of a pre military deployment overseas, vaccines are given prior to departure.  On several occasion[s], the uncle in question had seizures soon after he was vaccinated, before a series of deployments.  Per the [student’s] mother, other family members have had vaccine related seizure disorders as well.

Review of the CDC guidelines state that a patient who is solely diagnosed with a seizure disorder or Epilepsy does not qualify for a Vaccine Waiver, i.e. just because a patient has a seizure disorder does not automatically exclude the patient from receiving vaccines.  However, in this case the difference is that the [student] received the vaccine which then triggered the seizure.  Therefore, [the student] qualifies for the waiver because the administration of the vaccine triggered her seizures.

According to the student’s medical records submitted by petitioner, the student was diagnosed with optic neuritis and focal seizures.  Petitioner submits an abstract from a study entitled, “Development of Optic Neuritis after Vaccination, A CDC/FDA Vaccine Adverse Event Reporting System (VAERS) Study 1990-2007” (“optic neuritis study”).  In the abstract, the authors state:

Although the reporting rate of post vaccination [optic neuritis] is in the range expected in the general population, the unbalanced distribution of these cases in the first 6 weeks after vaccination suggests that the association between vaccination and some cases may not be coincidental.  Work is in progress to determine association of individual vaccine types with the course of optic neuritis.

Petitioner also submits three letters dated October 16, 2008 from a physician based in Maine that state, “[d]ue to the family history of vaccine reactions, I agree with the parents to not give vaccinations.”  These letters were apparently used to support medical exemptions from vaccination requirements for the student’s uncle’s children in Maine.  As indicated above, petitioner explains that the student’s last seizure was in 2010 and the relevant hospital no longer has copies of the student’s records.  Petitioner further asserts that the student’s prior pediatrician is no longer in practice and obtaining the student’s complete file “has been impossible.”

In the denial letter, respondent’s medical director explained that the records did not demonstrate a causal connection between the student’s seizures and vaccination.  Respondent’s physician specifically stated that “there was no notation of a contemporary vaccination as a precipitant to the seizure” in the records.  He additionally stated that “[t]he report of an uncle seizing in relationship to a military vaccination is likely due to what is known as a vasovagal reaction and does not establish a physiological or a congenital risk in [the student].”  The denial letter further stated, “there is no documentation to establish that any vaccine resulted in an adverse effect in [the student].  There is documentation of a seizure disorder and neurological deficit which should be part of the student record.”

On this record, petitioner has failed to meet her burden of proving that the student is entitled to a medical exemption.  Neither the medical exemption form nor the records subsequently submitted by petitioner contain sufficient information to identify a medical contraindication to a specific immunization, let alone a contraindication consistent with ACIP or another nationally recognized evidence-based standard of care (10 NYCRR §66-1.1[l]).  The record lacks sufficient evidence that the student’s seizures or optic neuritis were caused by vaccinations.  The assertions concerning causation in the letter from the student’s doctor are not supported by the medical information in the record, which fails to show that any of the student’s seizures or her optical neuritis were caused by vaccinations.  Moreover, the information from the optic neuritis study submitted by petitioner is general in nature and merely states that “[w]ork is in progress to determine association of individual vaccine types with the course of optic neuritis.”  I further note that, petitioner failed to submit medical proof regarding the cause of the uncle’s seizures or explain how the uncle’s seizures support a medical exemption for the student.  Accordingly, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE