Appeal of L.S. and J.S., on behalf of their child, from action of the Board of Education of the Center Moriches Union Free School District regarding immunization.

Decision No. 18,418

(June 11, 2024)

Russo, Karl, Widmaier & Cordano PLLC, attorneys for petitioners, Colleen F. Dowd, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, Michael D. Raniere, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the determination of the Board of Education of the Center Moriches Union Free School District (“respondent”) that their 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.

At all relevant times, the student attended school in respondent’s district.  By form dated September 25, 2023, petitioners sought a medical exemption on behalf of the student from the following vaccines: polio; tetanus, diphtheria, pertussis; measles, mumps, and rubella; varicella; and pneumococcal conjugate vaccine.  By letter dated October 4, 2023, an elementary school principal determined, based on his review of the medical exemption request and in consultation with the district’s medical director, that the student was not entitled to a medical exemption.

Following further discussions with petitioners, respondent sought guidance from the New York State Department of Health (“DOH”) regarding the student’s entitlement to a medical exemption.  By letter dated October 16, 2023, DOH opined that the student did not have a contraindication or precaution to the immunizations from which he sought an exemption.  This appeal ensued.  Petitioners’ request for interim relief was denied on November 15, 2023.

Petitioners argue that the student is entitled to a medical exemption from the immunization requirements of PHL § 2164.  Petitioners also challenge the process by which respondent reached and communicated its determination.

Respondent argues that it reasonably denied petitioners’ medical exemption request and that petitioners have otherwise failed to meet their burden of proof.

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 a single exception to the immunization requirement:  immunization is not required if a New York-licensed physician certifies that immunization may be detrimental to a child's health (PHL § 2164 [8]).  Pursuant to applicable DOH regulations,

A principal or person in charge of a school shall not admit a child to school unless a person in parental relation to the child has furnished the school with … [a] signed, completed medical exemption form … from a physician licensed to practice medicine in New York State certifying that immunization may be detrimental to the child's health, containing sufficient information to identify a medical contraindication to a specific immunization and specifying the length of time the immunization is medically contraindicated.  The medical exemption must be reissued annually. The principal or person in charge of the school may require additional information supporting the exemption.

(10 NYCRR 66-1.3 [c]).  The phrase “[m]ay be detrimental to the child’s health” means “that a physician has determined that a child has a medical contraindication or precaution to a specific immunization consistent with ACIP[1] guidance or other nationally recognized evidence-based standard of care” (10 NYCRR 66-1.1 [l]).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).

Petitioners have failed to meet their burden of proof.  The medical exemption form submitted by petitioners indicates that the student experienced “high fever,” “hearing loss[,] and speech delay” in response to administration of unidentified vaccinations.[2]  The form further states that the student “has a heart murmur and is awaiting cardiac clearance as well as more extensive allergy testing, prior to further vaccination.”[3]

Petitioners do not assert, however, that any of these conditions are contraindications or precautions to the vaccinations the student requires (see Appeal of S.V., 61 Ed Dept Rep, Decision No. 18,097; Appeal of V.T., 60 id., Decision No. 17,979; Appeal of E.Y., 60 id., Decision No. 17,891).  While petitioners argue that information contained in a manufacturer insert supports their argument, petitioners have provided only manufacturer information concerning a vaccination that is not at issue in this appeal (PHL § 2164).[4]  Thus, petitioners have failed to meet their burden of proof (Appeal of M.H., 63 Ed Dept Rep, Decision No. 18,374; Appeal of O.E., 62 id., Decision No. 18,235; Appeal of Y.W., 61 id., Decision No. 18,084).

Finally, I admonish respondent to ensure that it “sufficiently explain[s] [its] reasoning in denying” medical exemption requests (Appeal of L.B., 58 Ed Dept Rep, Decision No. 17,552; see also Appeal of S.C., 58 Ed Dept Rep, Decision No. 17,606).  While respondent eventually consulted with DOH, the medical director’s summary denial—“[t]his request for medical exemption is denied”—was insufficient (New York State Education Department Office of Student Support Services, “Immunization Guidelines for Schools,” [July 2023] available at https://www.nysed.gov/sites/default/files/programs/student-support-services/immunization-guidelines-for-schools.pdf at 10]).

I have considered the parties’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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