Appeal of S.V., on behalf of her child, from action of the Board of Education of the Liverpool Central School District regarding immunization.

Decision No. 18,097

(March 14, 2022)

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

Bond, Schoeneck & King, PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Liverpool 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.

The student attended kindergarten in respondent’s district for the 2020-2021 school year.  Petitioner submitted a medical exemption request form dated August 18, 2020, signed by a physician, seeking exemptions for the student from all required immunizations.  The physician indicated that the student had the following medical contraindications to immunization:  “1. Pathogenic sequence variant in the SCN1A gene; and 2. Previous neurological regressions following vaccinations at ages 12 and 15 months.”  The physician also provided a statement detailing studies of adverse events arising from vaccinations.  The physician further asserted that “The [New York State] Department of Health regulations requiring specific contraindications violate informed consent laws because the current research from CDC and ACIP ... is deficient.”[1]

On October 27, 2020, following consultation with the New York State Department of Health (“DOH”), respondent requested further information regarding the student’s genetic condition.  In response, petitioner submitted a genetic report and an undated email from a physician who had conducted genetic testing (“testing physician”) to the student’s (former) physician.  In the email, the testing physician indicated that the student has a variant on the SCN1A gene that is associated with a rare seizure disorder.  The genetic report opined that the SCN1A gene is “most likely serving as a permissive genetic factor for neurological deterioration following certain triggers (e.g. vaccination, infection).”  The testing physician further indicated that the student had a “neurological regression following vaccinations at ages of 12 and 15 months” that was “consistent with a pathogenic sequence variant (a ‘mutation’) in the SCN1A gene.”

By letter dated November 19, 2020, respondent denied petitioner’s medical exemption request.  Respondent determined that the information submitted by petitioner regarding the student’s medical history did not constitute a recognized contraindication or precaution to a specific immunization “consistent with the ACIP guidance or other nationally recognized evidence-based standard of care.”  This appeal ensued.  Petitioner’s request for interim relief was denied on January 4, 2021.

Petitioner contends that respondent’s denial of the medical exemption was arbitrary and capricious due to the student’s medical circumstances, which she described as a “contraindication” to immunization.

Respondent contends that the appeal must be dismissed because the petition was not served on an individual authorized to accept service.  On the merits, respondent contends that its determination was made in conformity with PHL § 2164 and its implementing regulations.

First, I will address the procedural issues.  In addition to submitting a reply to respondent’s answer, petitioner also submitted a response to respondent’s opposition to her application for a stay order.  Petitioner’s response to respondent’s opposition papers is not a pleading included in section 275.3 of the Commissioner’s regulations (see Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Gordinier, 52 id., Decision No. 16,433).  Nevertheless, since respondent does not object to this submission, I will accept petitioner’s response to respondent’s opposition papers as a document in the nature of a reply to respondent’s answer for purposes of sections 275.3 and 275.14 of the Commissioner’s regulations.

Respondent also contends that the appeal should be dismissed for improper service.  Section 275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).  A respondent bears the burden of proof to establish any affirmative defenses (8 NYCRR 275.12 [a]; see also Appeal of Kenton, 54 Ed Dept Rep, Decision No. 16,649; Application of Simmons, 53 id., Decision No. 16,596; Appeal of Mogel, 41 id. 127, Decision No. 14,636).

Here, petitioner’s spouse served the petition on the student support services clerk in respondent’s administrative office.  Respondent contends that this individual was not authorized to accept service on behalf of respondent.  In reply, petitioner submits an affidavit from her spouse, who avers that the individual whom he served in respondent’s office of the district clerk identified herself as the “clerk.”  Moreover, petitioner contends that the petition was transferred to the district clerk and that respondent suffered no prejudice therefrom.

While the circumstances concerning the clerk’s identity were ambiguous, the process server could have reasonably concluded that the recipient was, in fact, the “district clerk” contemplated by 8 NYCRR 275.8 (f) because she: (1) identified herself as a “clerk”; and (2) was working within the office of the district clerk.  As such, I decline to dismiss the appeal for improper service (see Appeal of R.S., 58 Ed Dept Rep, Decision No. 17,626; see also Appeal of M.P. and T.P., 60 id., Decision No. 17,937).

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 one exception: 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.

DOH has defined 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).

On this record, petitioner has failed to meet her burden of proving that the student has a clear legal right to a medical exemption.  The medical exemption request and documentation submitted by petitioner did not identify a medical contraindication or precaution to a specific immunization consistent with ACIP guidance or other nationally recognized evidence-based standard of care.  Although the physician’s statement in support of the medical exemption request identified two purported contraindications for the student—a variant in the SCN1A gene and neurological regressions following vaccination as an infant—petitioner has submitted no evidence that these are contraindications within the meaning of 10 NYCRR 66-1.1 (1).  Therefore, petitioner has failed to meet her burden of proof (see Appeal of V.T., 60 Ed Dept Rep, Decision No. 17,979; Appeal of E.Y., 60 id., Decision No. 17,891; Appeal of P.K., 59 id., Decision No. 17,802).

Additionally, I have no authority to address petitioner’s claim that PHL § 2164 or its implementing regulations are arbitrary or capricious (see Appeal of Y.W., 61 Ed Dept Rep, Decision No. 18,084; Appeal of R.P., 61 id., Decision No. 18,015; Appeal of J.A., 60 id., Decision No. 17,984).  In this respect, I note that the Appellate Division recently held that 10 NYCRR 66-1.1 (1) is valid and did not exceed DOH’s rule making authority (Matter of Kerri W.S. v Zucker, 202 AD3d 143 [4th Dept 2021]).

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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