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Decision No. 17,817

Appeal of J.J., on behalf of his children N.J. and S.J., from action of the Board of Education of the Half Hollow Hills Central School District regarding immunization.

Decision No. 17,817

(February 20, 2020)

Frazer & Feldman, LLP, attorneys for respondent, Abigail A. Hoglund-Shen, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Half Hollow Hills Central School District (“respondent”) that his children, N.J. and S.J. (“the students”), are not entitled to attend school without meeting the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

The students attended school in respondent’s district at all times relevant to this appeal.  In the 2015-2016 school year, the students were granted religious exemptions to the immunization requirements of PHL §2164.  At the time, PHL §2164 included provisions authorizing an exemption to required immunizations based on religious beliefs.  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However, on June 13, 2019, Chapter 35 of the Laws of 2019 was enacted, effective immediately, which repealed subdivision nine of PHL §2164, thus eliminating the religious exemption to immunization requirements to attend school.[1]  Respondent advised petitioner of the change in the law and the students’ need to receive required immunizations.  After petitioner advised respondent’s superintendent that he objected to the students receiving any immunizations, respondent determined that the students must be excluded from school because they lacked age-appropriate appointments to complete their required immunization series and petitioner failed to provide a valid medical exemption.  This appeal ensued.[2]  Petitioner’s request for interim relief was denied on October 4, 2019.

Petitioner objects to the repeal of the religious exemption.  Petitioner argues that he is opposed to immunizations and is in the process of obtaining medical exemptions for the students.  For relief, petitioner requests that respondent be “enjoin[ed]” from excluding the students from school.  Petitioner additionally seeks “[s]pecific and [d]etailed information as to all the ingredients contained in the immunizations,” and “[a] [d]eclaratory [j]udgment which address[es] the issues raised in this [appeal].”

Respondent  argues that the appeal is moot given the repeal of the religious exemption.  Respondent also argues that petitioner has failed to state a claim upon which relief may be granted or to meet his burden on the merits, inasmuch as respondent was required to exclude the students from school pursuant to PHL §2164.

Following the submission of the parties’ pleadings, respondent submitted a supplemental affidavit from the superintendent alleging that the appeal is now moot because the students have been readmitted to school in respondent’s district.  Additional affidavits, exhibits, and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Here, I will exercise my discretion and accept respondent’s additional submission to the extent that it addresses whether the appeal has been rendered moot as a result of events that occurred after the parties’ pleadings were submitted (see Application of Adams, 59 Ed Dept Rep, Decision No. 17,787; Appeal of Jane Doe, 58 id., Decision No. 17,627).

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).

In his supplemental affidavit, the superintendent states that, following the commencement of this appeal, the students’ mother provided evidence that N.J. was fully immunized and that S.J. was scheduled for appointments to complete the required immunization series, rendering S.J. in process of being fully immunized as required under the emergency regulations that were issued by the New York State Department of Health in response to the Legislature’s amendments to PHL §2164 (see 10 NYCRR §66-1.1[j][4]).  The students were readmitted to school on or about October 17, 2019.  Accordingly, petitioner’s request that I enjoin respondent from excluding the students from school is moot.

Petitioner’s remaining requests for relief must be dismissed for lack of jurisdiction.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).  Accordingly, I lack jurisdiction to grant any declaratory judgment.

Furthermore, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893).  I therefore have no authority to provide petitioner with the substantive information he seeks regarding immunization ingredients.




[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 submitted two petitions in this matter, one for each child.  These petitions have been consolidated for the submission of other papers and the issuance of a decision.