Appeal of J.A., on behalf of his daughter I.A., from action of the Board of Education of the Pawling Central School District regarding immunization.

Decision No. 17,984

(April 21, 2021)

Girvin & Ferlazzo, PC, attorneys for respondent, Kristine A. Lanchantin, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the anticipated exclusion from school of his daughter (“the student”) by the Board of Education of the Pawling Central School District (“respondent”) for lack of required immunizations.  The appeal must be dismissed.

The record in this matter is sparse as to the events giving rise this appeal.  As best as can be ascertained, the student attends school within respondent’s district and lacks several immunizations required by Public Health Law (“PHL”) § 2164.[1]  On October 12, 2020, the New York State Department of Health (“DOH”) issued guidance indicating that it would suspend enforcement of the vaccination requirements in PHL § 2164(7) for a period of 30 days for students attending school exclusively through remote learning.  During this “grace period, ... students engaged in remote learning” were required to “obtain all required vaccinations, if they ha[d] not already, to be eligible to continue attending school following expiration of th[e] guidance.”[2]  Respondent indicates that it provided the student the option to continue remotely during this 30-day grace period, but otherwise required that she receive all required immunizations by November 12, 2020.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 16, 2020. 

Petitioner maintains that the student is “due for two immunization[s] ... to continue to attend” respondent’s elementary school.  Petitioner states that he is “not willing to subject [the student] to the last few shots which are needed to attend” because his oldest daughter previously suffered an adverse reaction to an unidentified vaccination.  For relief, petitioner requests that the student’s “last two vaccinations” be “waive[d].” 

Respondent contends, among other things, that the appeal must be dismissed for failure to state a claim upon which relief may be granted.  Respondent also argues that the Commissioner of Education does not have the authority to waive the requirements of PHL § 2164.

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]).  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).

Here, while petitioner seeks an exemption on behalf of his daughter from the immunization requirements of PHL § 2164, there is no evidence that he submitted a request for a medical exemption on behalf of the student for any of her required immunizations.  As indicated above, the sole means by which a student may be exempted from receiving any immunization required under PHL § 2164 is if a licensed physician certifies that the immunizations would be detrimental to the student’s health (PHL § 2164[8]).  Thus, to the extent that petitioner requests that the student receive an exemption from the immunization requirements of PHL § 2164, 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, to the extent petitioner’s request that the requirements of PHL § 2164 be “waive[d]” constitutes a request for a medical exemption, it must be dismissed as premature (Appeal of J.K., 60 Ed Dept Rep, Decision No. 17,967).

To the extent petitioner requests that I excuse his noncompliance with PHL § 2164 or authorize an extension of a “grace period” offered by DOH, I lack jurisdiction to do so.  PHL § 2164 is a statute administered by DOH that I have no authority to disregard, and any suspension of enforcement for noncompliance therewith is solely within DOH’s discretion.

In light of this disposition, I need not address the parties’ remaining contentions, including respondent’s procedural defenses.

THE APPEAL IS DISMISSED.

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