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Decision No. 18,115

Appeal of M.D., on behalf of her child, from action of the New York City Department of Education regarding immunization.

Decision No. 18,115

(May 2, 2022)

The Law Office of Sharon K. Covino, attorneys for petitioner, Sharon K. Covino, Esq., of counsel

Hon. Sylvia Hinds-Radix, Corporation Counsel, attorney for respondent, Wynee Ngo, Esq., of counsel

Rosa., Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent” or “DOE”) that her child (“the student”) is not entitled to a medical exemption from DOE’s COVID-19 immunization requirement for students who participate in high-risk extracurricular sports and activities.  The appeal must be dismissed.

In a letter to families dated August 20, 2021, DOE’s Chancellor indicated that “COVID-19 vaccination [would] be required ... for ... students and staff” participating in “high-risk” sports for the 2021-2022 school year.  By order dated September 15, 2021, the Commissioner of the New York City Department of Health and Mental Hygiene (“DOHMH”) required that “all DOE and charter school students participating in high-risk extracurricular activities ... eligible to be vaccinated” receive a COVID-19 vaccine prior to participation.

The student was enrolled in respondent’s schools at all times relevant to this appeal.  Upon learning that DOE would require the student to receive a COVID-19 vaccination to participate in his school’s 2021-2022 basketball season, petitioner requested a medical exemption on the student’s behalf.  By letter dated November 9, 2021, respondent denied petitioner’s request, finding that the “records provided by your child’s health care provider(s) d[id] not meet standards needed to exempt your child from receiving the COVID-19 immunization ....”  This appeal ensued.  Petitioner’s request for interim relief was denied on December 16, 2021.

Petitioner argues that respondent’s denial of the request for a medical exemption was arbitrary because it lacked sufficient reasoning.  Petitioner further argues that DOE’s policy is irrational because the student is allowed to participate, without a vaccination requirement, in numerous other activities with classmates during the school day.  Petitioner seeks, among other things, an order directing DOHMH to offer additional guidance regarding eligibility for a medical exemption.

Respondent contends that petitioner has failed to meet her burden of proving that its denial was arbitrary and capricious.  Respondent further states that its determination was made “in accordance with national, state, and local guidelines responsive to the COVID-19 pandemic [] and reflected the medical expertise of a public health doctor.”

Initially, I lack jurisdiction to review DOHMH’s determination that the COVID-19 vaccination is required to participate in high-risk extracurricular activities.  Determinations of local departments of health may not be reviewed in an appeal to the Commissioner under Education Law § 310 (Appeal of J.G., 61 Ed Dept Rep, Decision No. 18,099; Appeal of Grossenbacher, 58 id., Decision No. 17,657).  Therefore, petitioner’s objections to this policy must be dismissed for lack of jurisdiction.

The appeal must also be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (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; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).  Petitioner’s medical exemption request pertained to the 2021-2022 junior varsity basketball season, which has concluded.  Thus, the appeal must be dismissed as moot (Appeal of E.S. and W.E., 59 Ed Dept Rep, Decision No. 17,808; Appeal of P.D. and C.C., 56 id., Decision No. 16,999; Appeal of Cham, 55 id., Decision No. 16,873).

While the appeal must be dismissed as moot, the record indicates that respondent accepts and reviews medical exemptions on a yearly basis.  Should petitioner submit an additional request that is denied, respondent must ensure that it explains the basis for its determination.  Respondent’s statement that petitioner’s “records [did] not meet standards needed to exempt [her] child” was inadequate (see Appeal of L.B., 58 Ed Dept Rep, Decision No. 17,552).  Additionally, it appears that DOHMH evaluates COVID-19 medical exemption requests using the same criteria as medical exemption requests submitted pursuant to Public Health Law § 2164 (8) (see Appeal of I.K.W., 61 Ed Dept Rep, Decision No. 18,060).  Respondent should ensure that this information is made available to students and families.

In light of this disposition, I need not address the parties’ remaining contentions.