Appeal of L.S., on behalf of his son M.S., from action of Yeshiva of Spring Valley regarding immunization.

Decision No. 15,758

(June 5, 2008)

AHEARN, Acting Commissioner.--Petitioner appeals the determination of Yeshiva of Spring Valley (“respondent”) that his son, M.S., is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164. [1]   The appeal must be dismissed.

On or about December 10, 2007, petitioner submitted to respondent a signed and notarized copy of the State Education Department’s (“Department”) “Request for Religious Exemption to Immunization Form – Parent/Guardian Statement” (“form”).  On the form, petitioner requested an immunization exemption for M.S. based on his “sincere religious belief that immunization is prohibited.”  On December 12, 2007, respondent denied petitioner’s request by marking the appropriate box on the Department’s form and drawing a line through the space in which the building principal was instructed to “State Specifically Reason(s) for Denial.”

On or about December 24, 2007, petitioner sent a letter to the Department stating his intention to appeal respondent’s decision.  By letter dated January 4, 2008, petitioner was advised by Department staff that he would need to file a formal appeal to the Commissioner under Education Law §310.  This appeal ensued.

Petitioner contends that he is entitled to a religious exemption for M.S. because his objections to immunization are based on sincerely held religious beliefs.  As support for his position, petitioner notes that the East Ramapo Central School District previously granted exemptions for M.S.’s siblings, based on the same objections.

Respondent contends that the appeal must be dismissed as untimely.  Respondent further maintains that petitioner’s objections to immunization are not based on sincerely held religious beliefs.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The record indicates that respondent’s final determination was made and received by petitioner on December 12, 2007.  However, petitioner did not commence the instant appeal until January 16, 2008, more than 30 days later.

Petitioner admits that his appeal is untimely, but asks that I excuse such delay based on his “misunderstanding ... of the official process to file an appeal.”  Petitioner explains that he thought “all [he] needed to do [to commence an appeal] was to write to the Commissioner,” which he did on December 24, 2007, and that he did not receive the Department’s letter regarding the appeal process until January 13, 2008.  However, petitioner’s letter to the Commissioner was not a substitute for a properly filed appeal of respondent’s determination (Appeal of Joanne M., 40 Ed Dept Rep 686, Decision No. 14,584; Appeal of Diane L., 37 id. 443, Decision No. 13,900).  Moreover, except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of E.M., 44 Ed Dept Rep 156, Decision No. 15,130; Appeal of R.A. and D.A., 43 id. 281, Decision No. 14,995).  I find no evidence of unusual circumstances in this case.  Accordingly, the appeal is dismissed as untimely.

Although this appeal must be dismissed on procedural grounds, I remind respondent that the religious exemption set forth in PHL §2164(9) applies to private and parochial schools [2] (Bowden, et al. v. Iona Grammar School, et al., 284 AD2d 357 [2nd Dept 2001]).  On the record before me, it is unclear whether respondent fully examined petitioner’s application for a religious exemption.  I therefore note that petitioner retains the right to reapply for a religious exemption and that respondent must evaluate any such application in light of this decision and the requirements of PHL §2164(9).

THE APPEAL IS DISMISSED.

END OF FILE

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[1] While Education Law §310 generally limits jurisdiction on appeal to matters involving public schools, that section and Public Health Law §2164(7)(b) provide for the Commissioner’s review of any immunization decision prohibiting a child from attending school, whether it be public, private, parochial or otherwise (seealso Public Health Law §2164[1][a]).

[2] As noted at the outset of this decision, the provisions of PHL §2164 apply to schools, which the statute defines as “any public, private or parochial child caring center, day nursery, day care agency, nursery school, kindergarten, elementary, intermediate or secondary school” (PHL §2164[1][a]).