Appeal of M.E.F., on behalf of her daughter J.A., from action of the Board of Education of the Haldane Central School District regarding immunization.

 

Decision No. 14,987
 

(November 25, 2003)

 

Keane & Beane, P.C., attorneys for respondent, Ronald Longo and Stephanie M. Roebuck, Esqs., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Haldane Central School District ("respondent") that her daughter is not entitled to an exemption from the immunization requirements of Public Health Law ("PHL") "2164.  The appeal must be sustained.

PHL "2164 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.  Among other things, children entering seventh grade on or after September 1, 2000 must show proof of immunization against Hepatitis B (PHL "2164 as amended by L.1994, C.521).

The law provides two exceptions to immunization.  Immunization is not required if the parent holds a genuine and sincere religious belief contrary to immunization (PHL "2164[9]) or if a licensed physician certifies that immunization may be detrimental to a child"s health (PHL "2164[8]).  It is the second exception that is at issue here.

Petitioner states that she is a licensed veterinarian and is familiar with scientific and medical journals and research.  She asserts that J.A. has atopic dermatitis and food allergies that are so severe they caused a 50% hearing loss.  She states that she chose a holistic treatment approach to her own cancer and to J.A."s allergies and that J.A."s condition has improved significantly.  When J.A. entered seventh grade at respondent"s Junior/Senior High School in September 2000, and was required to show proof of a Hepatitis B vaccination, petitioner presented the school nurse with a note from a physician.  That note, written on a prescription pad inscribed with the physician"s name and address, stated J.A. "should not be required to receive Hepatitis B vaccine.  She suffers from multiple allergies."  The school nurse accepted the note and permitted J.A. to enroll without the Hepatitis B vaccination.

According to respondent, in September 2001 an employee of the New York State Department of Health (DOH) audited the district to insure that all seventh and eighth grade students were in compliance with PHL "2164.  Respondent states that the DOH employee, after reviewing J.A."s records, informed the school nurse that DOH would not accept the physician"s note as grounds for an exemption, "as there was nothing within the Hepatitis B vaccination that would cause an allergic reaction."  The nurse avers that the DOH employee stated that she would advise petitioner that the State would not accept the doctor"s note as grounds for an exemption.  The record is silent regarding whether that conversation ever occurred.  However, in the summer of 2002, the school nurse reviewed the district"s immunization records and realized that there was no record of immunization in J.A."s file.  Thereafter, in September 2002, she notified petitioner that J.A. needed to be vaccinated.

By letter to the school nurse, the Junior/Senior High School principal and others dated October 9, 2002, petitioner stated her medical and scientific reasons for declining to vaccinate J.A. and, for the first time, asserted that she also had religious convictions against vaccinating J.A.  By letter dated October 21, 2002, the principal notified petitioner that her reasons for not immunizing J.A., as set forth in her October 9 letter, did not fall within the statutory exceptions.  He also informed her that J.A. would not be permitted to attend school in the district after November 21, 2002.  By letter dated October 23, 2002, petitioner informed district officials that she intended to appeal to the Commissioner.  By letter dated October 28, 2002, respondent"s superintendent forwarded a copy of the district"s immunization policy to petitioner.  This appeal ensued.  Petitioner"s request for interim relief was granted on January 6, 2003.

                In her petition, initiated November 15, 2002, petitioner asserts that the district"s written immunization policy does not apply to J.A.  In addition, petitioner submits a letter from a different physician, dated November 1, 2002, requesting J.A."s exemption from the Hepatitis B vaccine on the ground that "she has a history of multiple severe food and environmental" allergies and the risks of vaccination would outweigh the benefits.  Petitioner also asserts, for the first time, that she and J.A. received the Hepatitis B vaccine in March 1993 after her former husband was diagnosed as a Hepatitis B and C carrier.  Petitioner does not claim entitlement to an exemption for religious reasons.

In its Affirmation in Opposition to Petitioner"s Request for a Stay ("Affirmation"), respondent admits that it improperly incorporated the wrong effective dates of the statutory amendment regarding Hepatitis B in its immunization policy, but asserts that it has been adhering to the statutory requirement that all students entering seventh grade by September 1, 2000 be vaccinated against Hepatitis B.  Respondent asserts that petitioner never previously indicated or submitted proof that J.A. had already been vaccinated in March 1993.  Respondent also asserts that petitioner"s allegation that J.A. was previously vaccinated negates her argument that she has a strongly held religious belief against immunization.  Respondent contends that petitioner"s letter from the second physician does not assert a different basis for exemption from the earlier one that DOH rejected, and therefore is insufficient to exempt J.A. from the statutory requirement for vaccination.

I must first address procedural issues.  Petitioner objects to the late filing of respondent"s Affirmation and Answer.  Since I previously considered these documents in granting petitioner"s request for an interim order, I have also considered them here.

Respondent"s immunization policy provides that immunization against Hepatitis B:

shall apply only to children born on or after January 1, 1993, beginning with their enrollment in any public, private or parochial kindergarten, elementary, intermediate or secondary school, and to children born on or after January 1, 1998, beginning with their enrollment in any school, as defined in [PHL "]2164(1)(a).

Petitioner asserts that since J.A. was born on May 11, 1988, respondent"s policy does not apply to her.  Petitioner is in error because respondent"s policy is not consistent with the law.  Respondent acknowledges that PHL "2164 requires all children entering seventh grade on or after September 1, 2000 to receive the immunization and asserts that it has uniformly applied this requirement despite its conflicting written policy.  Respondent is directed to immediately amend its policy in accordance with the provisions of PHL "2164.

In this appeal, petitioner asserts that J.A. was vaccinated against Hepatitis B in 1993.  As proof of J.A."s prior vaccination, petitioner offers a copy of handwritten notes on a page allegedly photocopied from her 1995 personal diary showing the alleged immunization dates of her children.  I find petitioner"s notes insufficient to prove that J.A. was vaccinated against Hepatitis B.  However, if petitioner has medical documentation to support her assertion, I advise her to submit such documentation to respondent.

PHL "2164(8) provides:

[i]f 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.

In addition, DOH regulations provide, as a requirement for school admission, a certificate of immunization or:

a certificate from a physician, licensed to practice medicine in this State, that one or more of the required immunizations may be detrimental to the child"s health.  This certificate must specify which immunizations may be detrimental (10 NYCRR "66-1.3[c]).

As the Commissioner stated in Appeal of McGann, (32 Ed Dept Rep 187, Decision No. 12,800):

The Legislature enacted [PHL "2164] after determining that immunization is effective and safe.  The purpose of immunization is to protect children who are immunized as well as the health and economic well-being of the community (Section 1 of L. 1968, c. 1094).  In every case the needs of the State must be balanced with the needs of the individual, and clearly when it is found to be medically unsound for a child to receive a required immunization, the law recognizes the necessity of a medical exemption (Public Health Law "2164[8]).  However, to balance the needs of the majority, a school district may not authorize a child to remain in attendance where the request for the medical exemption is suspect.  A blanket medical exemption certificate without evidence indicating why all immunizations are detrimental to the child is insufficient to meet the standards established by Public Health Law "2164 (Lewis v. Sobol, 710 F. Supp. 506).

In McGann, the petitioner submitted an exemption request on a prescription pad from her doctor, stating that " . . .immunizations would be harmful to the above child"s health.  This includes MMR, DPT, Polio and HIB."  (McGann was decided in 1992, before the requirement for the Hepatitis B vaccination was enacted.)  The respondent district asked the physician to explain why the child could not be vaccinated but neither the physician nor petitioner responded.  Respondent then contacted DOH for further information, and was advised by DOH"s General Counsel and Director of General Communicable Disease Activities that "without a specific explanation of harmful effects, the district should refuse to allow the student to continue to attend school until immunized."  The Commissioner found that respondent was within its rights "to demand additional information to ascertain why all immunizations would be detrimental, and to deny the exemption when no additional information was forthcoming."

In this case, respondent argues that it properly relied on the statements of the DOH employee in rejecting petitioner"s request for a medical exemption.  However, I find that an oral statement of a DOH employee, without more, is an insufficient reason to reject petitioner"s request for a medical exemption.  There is no evidence in the record regarding the basis for or accuracy of DOH"s assessment.  In contrast to the situation in McGann, there is nothing in this record indicating that respondent had a written determination or sought further information in writing from DOH or medical experts.  (See, e.g., Lynch v. Clarkstown CSD, 155 Misc.2d 846, in which the school district referred the request for medical exemption to its medical officer who undertook a review of medical literature and conferred with medical experts).

Moreover, petitioner has submitted an additional physician"s statement.  The November 1, 2002 letter, written on the physician"s letterhead, states:  "Please allow [J.A.] to be exempt from receiving the Hepatitis B vaccine.  She has a history of multiple severe food and environmental alleries [sic] and the risks of vaccination would outweigh the benefits."  While I recognize that this letter was submitted subsequent to respondent"s initial determination, there is nothing in the record demonstrating that respondent made any attempt to request additional information from petitioner, this physician or other medical authorities after receiving the letter.  Respondent"s counsel simply states its position that the November 1, 2002 letter is "no different from" the earlier note rejected by DOH.

In contrast to McGann, petitioner here does not seek a blanket exemption from all immunizations, but rather seeks an exemption only for the Hepatitis B immunization.  The letter identifies a particular immunization as a risk to J.A."s health for the specific reasons that she has multiple severe food and environmental allergies.  The weight of petitioner"s medical and scientific submissions and her opposition to vaccines in general are irrelevant to a determination of whether the specific request for medical exemption comports with the statute.  On its face, the letter complies with the statutory requirement in PHL "2164(8) and satisfies DOH"s regulation (10 NYCRR "66-1.3[c]).  Thus, I find that respondent has acted arbitrarily in refusing the exemption without further inquiry.

 

THE APPEAL IS SUSTAINED.

 

IT IS ORDERED that respondent amend its immunization policy in accordance with the provisions of PHL "2164.

IT IS FURTHER ORDERED that respondent admit petitioner"s daughter to its schools.

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