Appeal of J.O. and E.O., on behalf of their child, from action of the Board of Education of the City School District of the City of Long Beach regarding immunization.

Decision No. 18,471

(August 19, 2024)

Minerva & D’Agostino, P.C., attorneys for petitioners, Christopher G. Kirby, Esq., of counsel

Volz & Vigliotta, PLLC, attorneys for respondent, David H. Arntsen, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the determination of the Board of Education of the City School District of the City of Long Beach (“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.

The student attended elementary school in respondent’s district at the time of the events described herein.  On January 19, 2024, respondent notified petitioners that the student would be excluded from school because his vaccination records had been submitted by a medical professional accused of fraud.[1]  Petitioners subsequently requested an exemption from all required vaccinations.  In connection therewith, they submitted a statement from the student’s doctor attesting that further immunization would be detrimental to his health. 

By letter dated March 5, 2024, respondent, in consultation with the district’s medical director and the New York State Department of Health (“DOH”), determined that the student was not eligible for the requested exemption and would be disenrolled.[2]  This appeal ensued.  Petitioners’ request for interim relief was denied on April 5, 2024.

Petitioners argue that the student is entitled to a medical exemption from all required immunizations based on his history of reactions to previous immunizations.  Petitioners also allege that respondent has not provided the student with a Free Appropriate Public Education or any of the special education services set forth in his Individualized Education Program (IEP) under the Individuals with Disabilities Education Act (IDEA).

Respondent argues that its denial of petitioners’ medical exemption request was lawful and appropriate.

As an initial matter, petitioners’ claim regarding the provision of special education services to the student must be dismissed for lack of jurisdiction. Claims brought to enforce rights arising under the IDEA must be addressed through its due process provisions (20 USC § 1415) and Education Law § 4404 or the State complaint procedure outlined in section 200.5 of the Commissioner’s regulations; such claims may not be addressed in an appeal brought pursuant to Education Law § 310 (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,375; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232; Appeal of a Student with a Disability, 46 id. 258, Decision No. 15,500).  Therefore, petitioners’ claim regarding the provision of special education services must be dismissed (Appeal of B.D., 61 Ed Dept Rep, Decision No. 18,016; Appeal of a Student with a Disability, 59 id., Decision No. 17,859).[3]

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 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[4] 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 proving that the student suffers from any medical contraindication or precaution to vaccinations consistent with a nationally recognized evidence-based standard of care.  In the medical exemption request, the physician states that the student experienced “a loss of skills, language and communication” following administration of the MMR vaccination in or around April 2018.  The physician further states that administration of the DTaP vaccination in December 2019 caused a “further decline in functioning” such that the student is “now ‘living in his own world’ with autism.”  The physician acknowledged that it was “[u]nclear how ... MMR or DTAP [were] directly related,” but nevertheless recommended that medical professionals “hold off on any vaccinations as patient clearly has had severe negative reaction to these x 2.”

Petitioners have not demonstrated that administration of the MMR or DTaP vaccinations caused the conditions of which they complain.  The student’s physician candidly admitted that it was “[u]nclear how ... MMR or DTAP [were] directly related” to the student’s “loss of skills, language and communication.”  Petitioners submit no further evidence on appeal and, thus, have failed to satisfy their burden of proving causation (see Appeal of S.G., 59 Ed Dept Rep, Decision No. 17,830 [“the absence of evidence to disprove causation does not constitute proof of causation”]; Appeal of P.K., 59 id., Decision No. 17,802).  Therefore, petitioners are not entitled to a medical exemption for the MMR or DTaP vaccinations.

To the extent petitioners seek exemptions from the other vaccinations required by PHL § 2164, they offer no evidence of a “contraindication or precaution” to any of these “specific immunization[s]” (10 NYCRR 66-1.1 [l]; see Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,822).

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

THE APPEAL IS DISMISSED.

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