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

Decision No. 18,472

(August 19, 2024)

          Muriel Goode-Trufant, Acting Corporation Counsel, attorneys for respondent, Alfred Miller, Jr., Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“NYCDOE” or “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 school in respondent’s district at the time of the events described herein.  In October, November, and December 2023, petitioner sought medical exemptions from the Hepatitis B, DTaP, Polio, MMR, and Varicella vaccines for the student pursuant to PHL § 2164.  Each request was denied; only the December 2023 request remains at issue.

By letter dated January 31, 2024, the Department of Health and Mental Health (“DOHMH”), determined that the student was not entitled to a medical exemption.  Petitioner appealed this to respondent’s Office of School Health (“OSH”), which denied her appeal on March 25, 2024.  This appeal ensued.

Petitioner contends that the student is entitled to an exemption from the immunization requirements of PHL § 2164 based on a history of reactions to unspecified vaccines.

Respondent contends that its determination was made in conformity with PHL § 2164 and its implementing regulations.

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).

In support of her appeal, petitioner included letters from the student’s physician stating that the student “suffers from an underlying condition and potential adverse effect [sic] from live vaccines.”  Notably, the physician does not state that he recommends immunization exemption based on his own assessment, only that other, unnamed, physicians suggested a connection between unidentified vaccinations and the student’s health.[2]  The record further reflects that the student’s physician, in a phone call with a physician employed by DOHMH, agreed that there was no medical contraindication to any of the vaccinations for which petitioner seeks exemptions.  As such, DOHMH and OSH reasonably denied petitioner’s request (Appeal of V.T., 60 Ed Dept Rep, Decision No. 17,979; Appeal of McGann, 32 Ed Dept Rep 187, Decision No. 12,800, citing Lewis v Sobol, 710 F Supp 506 [SD NY 1989]; [“A blanket medical exemption [request] without evidence indicating why all immunizations are detrimental to the child is insufficient to meet the standards established by [PHL] §2164”]).

While I am empathetic to petitioner’s concerns, she has not demonstrated a precaution or contraindication to any of the immunizations for which she seeks an exemption (10 NYCRR 66-1.1 [l]).  Consequently, the appeal must be dismissed (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).

THE APPEAL IS DISMISSED.

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