Appeal of J.K., on behalf of J.K. and M.K., from action of the Board of Education of the Frontier Central School District regarding immunization.

Decision No. 17,967

(March 17, 2021)

Hodgson Russ LLP, attorneys for respondent, Lindsay A. Menasco, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Frontier Central School District (“respondent”) that his children (“the students”) are not entitled to receive transportation services on the grounds that they have not met the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

Petitioner and the students reside within respondent’s district, and the students attend a nonpublic school.  Prior to the 2019-2020 school year, the students received transportation services from respondent’s district.

By letters dated August 1, 2019,[1] respondent’s assistant superintendent for instruction (“assistant superintendent”) informed petitioner that, due to recent amendments to PHL §2164,[2] the district required “sufficient proof of [the students’] required immunizations for [their] continued use of [d]istrict transportation services.”  The assistant superintendent directed petitioner to submit proof that the students had received the “first dose in each immunization series,” as well as “documentation demonstrating a schedule of age appropriate appointments for all required follow-up vaccine dosages,” by August 23, 2019. 

By letters dated September 9, 2019, the assistant superintendent notified petitioner that the district had not received the required documentation and, further, that the district had to receive this proof by September 18, 2019 “in order for [the students] to continue to receive ... transportation services.” 

The record reflects that, although petitioner and the district continued to communicate about immunization requirements between September 18, 2019 and October 4, 2019, petitioner did not submit the required documentation.  Respondent thus excluded the students from receiving transportation services.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 31, 2019.

Although not entirely clear, petitioner appears to argue that the students should be considered to be “in process” for meeting the immunization requirements of PHL §2164, pursuant to 10 NYCRR §66-1.1(j).  As such, petitioners argue that the students should be permitted to follow an “alternative immunization schedule” for their remaining doses.  Petitioner seeks an order directing that the students “be excluded” from receiving the hepatitis B vaccine as well as any further doses of the polio and tetanus, diphtheria, and pertussis vaccines. 

Respondent argues, among other things, that it properly excluded the students from receiving transportation services for failing to comply with applicable immunization requirements.

First, I must address a procedural matter.  Respondent objects to the scope of petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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 (PHL §2164[7]).  School attendance includes “being transported on a school bus or vehicle with other school children” (10 NYCRR §66-1.1[m]).

The law currently provides a single exemption to the immunization requirements, whereby an immunization is not required if a physician licensed in New York “certifies that such immunization may be detrimental to a child's health” (PHL §2164[8]).  The exemption applies “until such immunization is found no longer to be detrimental to the child’s health” (PHL §2164[8]).

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).

On this record, petitioner has failed to establish that the students are entitled to receive transportation from respondent’s district.  Petitioner acknowledges that the students have not received all immunizations required under PHL §2164.  Instead, petitioner requests that the students “be excluded” from receiving the hepatitis B vaccine as well as further doses of the polio and tetanus, diphtheria, and pertussis vaccines.  Petitioner thus seeks, in essence, an exemption on behalf of the students from the immunization requirements of PHL §2164. 

Petitioner does not dispute that he has not submitted a request for a medical exemption on behalf of the students for any of the required immunizations.  Indeed, despite his request that the students be permitted not to receive certain required vaccines, petitioner affirmatively states that he is not seeking a medical exemption.  As discussed above, however, the sole means by which the students may be exempted from receiving any immunizations required under PHL §2164 is if a licensed physician certifies that the immunizations would be detrimental to the students’ health (PHL §2164[8]).  Thus, to the extent that petitioner requests that the students receive an exemption from the immunization requirements regarding the hepatitis B vaccine and further doses of the polio and tetanus, diphtheria, and pertussis vaccines, he is requesting this exemption for the first time on appeal.  An appeal pursuant to Education Law §310 is appellate in nature, and the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of V.N., 59 Ed Dept Rep, Decision No. 17,742; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  Therefore, petitioner’s request that the students “be excluded” from, or otherwise permitted not to receive, certain required immunizations must be dismissed as premature.[3]

To the extent that petitioner contends the students are “in process” of meeting the requirements of PHL §2164, this claim lacks merit.  Pursuant to 10 NYCRR §66-1.1(j), a child is in process of meeting the requirements of PHL §2164 if he or she “has received at least the first dose in each immunization series” and “has age appropriate appointments to complete the immunization series” (10 NYCRR §66-1.1[j][1] [emphasis added]).  Moreover, where a child has negative results following serologic testing for immunity to a vaccine-preventable disease, the child is in process if he or she has appointments “to complete, or begin completion, of the immunization series” within 30 days of the parent or guardian’s receipt of the negative results (10 NYCRR §66-1.1[j][3]). 

Beyond his conclusory assertion, petitioner has submitted no evidence that the students are in process of meeting the requirements of PHL §2164 with respect to all immunization series.  Although petitioner identifies dates when the students intend to receive the varicella and MMR vaccinations, he has not established that the students have appointments for each required immunization series (10 NYCRR §66-1.1[j][1]).  Indeed, petitioner seeks to exempt the students from receiving any doses of the hepatitis B immunization – a required immunization under PHL §2164 – on the ground “that they are not at ‘risk for HBV infection....’”

In sum, the record reflects that petitioner has not submitted medical exemption requests on the students’ behalf; the students have not received all immunizations required under PHL §2164; and petitioner has not made appointments for the students to complete, or begin completion, of each immunization series.  Accordingly, I have no basis to conclude that respondent’s exclusion of the student for lack of immunization was improper.

Notwithstanding the disposition of this appeal, petitioner remains free to submit a request for a medical exemption from the requirements of PHL §2164 on behalf of the students and/or evidence sufficient to establish that, pursuant to 10 NYCRR §66-1.1(j), the students are in process of meeting the requirements of PHL §2164.

THE APPEAL IS DISMISSED.

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