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Decision No. 17,928

Appeal of P.D., on behalf of her daughter M.M., from action of the Board of Education of the Katonah-Lewisboro Union Free School District regarding immunization.

Decision No. 17,928

(October 7, 2020)

Patricia Finn Attorney, P.C., attorney for petitioner, Patricia Finn, Esq., of counsel

Ingerman Smith, LLP, attorney for respondent, Emily J. Lucas, Esq., of counsel

ROSA., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Katonah-Lewisboro Union Free School District (“respondent”) that her daughter, M.M. (“the student”), must be excluded from school for failure to comply with the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

At all times relevant to this appeal, the student attended respondent’s schools.  Previously, the student received a religious exemption from the immunization requirements of PHL §2164.  At the time, PHL §2164(9) included provisions authorizing an exemption to required immunizations based on religious beliefs.  On June 13, 2019, however, the Legislature enacted Chapter 35 of the Laws of 2019, effective immediately, which repealed subdivision nine of PHL §2164, thus eliminating the religious exemption.[1]

By letter dated June 20, 2019, respondent informed petitioner that the religious exemption had been repealed and that appropriate evidence of compliance with applicable immunization laws would be required for the student’s attendance at respondent’s schools in the coming school year.  Thereafter, by email dated September 12, 2019, respondent informed petitioner that the student required several specific vaccinations to attend school. 

Petitioner provided evidence that the student received a dose of the varicella vaccine on September 14, 2019.  By email dated September 17, 2019, respondent informed petitioner that, in order to remain in school on September 18, 2019, the student must receive the fourth dose of Tdap and the fourth dose of the polio vaccine.  Additionally, respondent informed petitioner that she needed to submit a follow-up schedule with dates for in-progress catch up for all outstanding immunizations by October 3, 2019.

By letter dated September 19, 2019, petitioner stated that the student had received the first age appropriate dose in each immunization series and provided a follow-up schedule for the student to receive all required vaccines by June 27, 2020.[2]  The student was excluded from school beginning on September 20, 2019.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 31, 2019.

Petitioner argues that respondent’s decision to exclude the student from school was arbitrary and capricious because she complied with applicable vaccine requirements and submitted a schedule to have the student fully vaccinated by June 30, 2020.  Petitioner seeks relief in the form of “allowing [the student] to complete her vaccination series by the June 30, 2020 deadline.”

Respondent argues that the student was properly excluded from school for failing to comply with applicable immunization requirements.

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).  The record reflects that petitioner agreed to have the student obtain all required vaccinations to attend school; the only disagreement between the parties concerned the appropriate timing of such vaccinations.  Even if I were to agree with petitioner’s argument, however, petitioner only seeks relief “allowing [the student] to complete her vaccination series by the June 30, 2020 deadline.”  That date has passed.  Therefore, no meaningful relief may be granted at this juncture and the appeal must be dismissed as moot.

In light of this determination, I need not address the parties’ remaining arguments.




[1] PHL §2164(7)(a), as amended by Chapter 35 of the Laws of 2019, provides that “[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 [(ACIP)] Recommended Immunization Schedules for Persons Aged 0 through 18 Years.”


[2] The dates in petitioner’s letter differed slightly from the dates in a letter from the student’s pediatrician; however, these differences are not material to this decision.