Appeal of E.C., on behalf of her daughter I.G., from action of the Board of Education of the Cairo-Durham Central School District regarding immunization.

Decision No. 17,638

(May 8, 2019)

Honeywell Law Firm PLLC, attorneys for respondent, Kate S. Howard, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Cairo-Durham Central School District (“respondent”) that her daughter (“the student” or “I.G.”) is not entitled to a medical exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

I.G. attended school in respondent’s district prior to the events described in this appeal.  I.G. has a sibling who has received a diagnosis of idiopathic thrombocytopenic purpura (“ITP”).  The district granted the sibling a medical exemption from immunization based upon this diagnosis.  Unlike her sibling, I.G. has not received a diagnosis of ITP.

In or about October 2017, petitioner indicated to a school nurse that she was interested in seeking a medical exemption from immunization for I.G.  The school nurse advised her to submit documentation from her physician indicating the basis for such a request.

In a letter dated October 26, 2017, the student’s physician recommended that the student “be exempt from additional live virus vaccines.”  The physician based his opinion on two factors; first, several days after administration of the varicella vaccine in October 2017, the physician asserted that the student “became nauseous and febrile” and eventually received a diagnosis of mesenteric adenitis.  Second, I.G. had a family history of ITP; specifically, her sibling developed ITP “two weeks after MMR” and I.G.’s “aunt died at age 35 from ITP.”  Respondent’s superintendent reviewed the request and sought input from the school nurse and the New York State Department of Health (“DOH”).

In a letter dated November 22, 2017, the medical director of DOH’s Bureau of Immunization (“medical director”) recommended that the student’s request for a medical exemption from immunization be denied.

In a letter dated November 30, 2017, respondent’s superintendent denied petitioner’s request for a medical exemption from immunization.  Petitioner thereafter submitted additional evidence to DOH for its consideration.  While DOH considered this additional material, respondent allowed the student to continue attending its schools.

In a letter dated May 24, 2018, the medical director indicated that she had reviewed the additional evidence submitted by petitioner and continued to recommend that petitioner’s medical exemption request be denied.

In a letter dated August 23, 2018, the superintendent indicated that petitioner’s request for a medical exemption request remained denied.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 17, 2018.

Petitioner argues that, although the student has not received a diagnosis of ITP, she is at “great risk” for developing the condition “due to her unique genetic history.”  Petitioner also argues that her pediatrician offered a “clear medical directive” which respondent unreasonably ignored.  Petitioner seeks a determination that the student is entitled to a medical exemption from the requirements of PHL §2164.

Respondent asserts that the petition must be dismissed as petitioner failed to serve a copy of the exhibits to the petition on respondent.  Respondent further contends that its determination was rational and made in consultation with medical professionals and experts, including DOH.

First, I must address respondent’s contention that the appeal must be dismissed because the copy of the petition served on the district did not include any exhibits.  Respondent asserts that it was served with a copy of the petition in a timely manner, but that it did not include any exhibits.  In a submission in the nature of a reply,[1] petitioner contends that her submission “was on time,” and that “someone tampered with the mail and the [a]ffidavit” which she “served” on the superintendent.  While not entirely clear, petitioner does not appear to contest respondent’s assertion that it was not served with a copy of the exhibits to the petition.  Petitioner’s failure to serve one or more exhibits as required by 8 NYCRR §275.8 does not, in and of itself, require dismissal of the appeal (see Appeal of Tamburrino, 56 Ed Dept Rep, Decision No. 17,004; Appeal of White, 50 id., Decision No. 16,239; Appeal of Koehler, 46 id. 425, Decision No. 15,553; Appeal of D.S. and D.S., 45 id. 289, Decision No. 15,327).  Prior decisions of the Commissioner have dismissed an appeal where the failure to serve a complete petition with exhibits resulted in discrepancies in the record or otherwise denied a respondent a meaningful opportunity to respond to the contents of the exhibits and present a defense and such prejudicial impact could not be cured by disregarding the exhibits (see Appeal of Students With Disabilities, 52 Ed Dept Rep, Decision No. 16,454; Appeal of Whitaker, 52 id., Decision No. 16,424).  Here, however, petitioner’s exhibits largely consist of documents which respondent has submitted with its answer, and are thus part of the record, or documents generated by the district concerning the student’s academic progress, which are not relevant to the issues in this appeal.  Therefore, I decline to dismiss the petition on this basis.  However, because the record reflects that respondent was not served with a copy of the exhibits to the petition, I have not considered such exhibits in reaching my determination.[2]

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 two exceptions to immunization: immunization is not required if the parent holds genuine and sincere religious beliefs 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 in this appeal.  The relevant portion of PHL §2164(8) provides:

If 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 require that no child shall be admitted to school without a certification of immunization or a medical exemption form or signed statement 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” (10 NYCRR §66-1.3[c]).

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

Here, I find that petitioner has failed to meet her burden of proving that respondent’s determination was arbitrary or capricious.  As an initial matter, I find that respondent was entitled to inquire into the certification submitted by the student’s pediatrician.  DOH regulations indicate that a request for a medical exemption from immunization must “contain [] sufficient information to identify a medical contraindication to a specific immunization” and permit a principal or person in charge of a school to “require additional information supporting the exemption” (10 NYCRR §66-1.3[c]).  Additionally, I find that respondent, through consultation with DOH, reasonably obtained written medical opinions and guidance concerning the student’s potential contraindication to MMR (10 NYCRR §66-1.3[c]; see also Lynch v. Clarkstown Cent. Sch. Dist., 155 Misc2d 846; Appeal of D.F., 50 Ed Dept Rep, Decision No. 16,132).

With respect to the student’s alleged contraindication to MMR, the medical director explained her reasons for recommending denial of petitioner’s request in her November 22, 2017 letter.  First, while acknowledging that “a personal history of [ITP] is a precaution to receipt of [the] MMR vaccine,” the medical director asserted that “a family history of [ITP] is not a known contraindication or precaution to MMR vaccination.”  The medical director further acknowledged that the student had been diagnosed with mesenteric adenitis 10 weeks after she received varicella but noted that “[a] history of mesenteric adenitis is not a known reason to delay immunization as long as the individual is not acutely ill.”  The medical director additionally noted that the student’s pediatrician did “not address delay of the second dose of varicella vaccine,” a vaccine which the student required, in his letter.

Upon receipt of additional information from petitioner, the medical director offered further analysis of the student’s circumstances in a letter dated May 24, 2018.  The medical director noted that petitioner had provided additional evidence to DOH that the student’s maternal aunt died from ITP.  The medical director further stated that she had sought assistance from the Centers for Disease Control and Prevention (“CDC”) and Johns Hopkins University’s Bloomberg School of Public Health.  Two physicians at Johns Hopkins completed a written report, and the medical director summarized the primary findings contained therein:

• Without the student’s aunt’s medical records, it is impossible to determine what caused her illness.  However, it is “highly unlikely to be related to the form of ITP seen in children following MMR”;
• A review of medical literature revealed that: (1) in epidemiologic studies to assess the risk of ITP following MMR in the United States or Europe, there was no mention of siblings developing ITP after MMR; (2) none of the reported cases of ITP in siblings were associated with the administration of MMR or any other vaccine; and (3) there was no mention of an increased risk of ITP following MMR in recently published textbooks of hematology;
• The risk of ITP after MMR is “quite low” (i.e., one in every 40,000 vaccinated), and of those who contract ITP, most recover within a few days or weeks, 80 percent recover within two months, and less than 10 percent develop chronic ITP;
• Children who have developed ITP after MMR have not had a recurrence of ITP after subsequent doses of MMR;
• Even for children who have a history of ITP, it is still recommended that they receive all required vaccinations so long as their condition is stable;
• Assuming I.G. did not have an underlying condition which predisposed her toward thrombocytopenia, I.G.’s risk of developing ITP after MMR was the same as that of the general population; and
• Infections with wild type measles and rubella are associated with an increased risk of ITP and many other serious complications.

In sum, the medical director concluded that there was no evidence that “this student’s family history of ITP [was] associated with an increased risk of ITP after MMR vaccine beyond that in the general population.”  Accordingly, the medical director recommended denial of petitioner’s request for a medical exemption from MMR.

On appeal, petitioner offers no information which contradicts respondent’s evidence.  Petitioner merely alleges that the student’s pediatrician counseled against administration of MMR and that the student is at “great risk” of contracting ITP due to her family history.  Respondent, however, considered and addressed these claims below, finding that, based upon the opinion of the medical director and the professionals with whom she consulted, the concerns of the student’s pediatrician were medically unfounded.

On appeal, petitioner also submits a printout from the CDC’s website concerning the Vaccine Information Statement (“VIS”) for MMR.  The MMR VIS indicates that “[s]ome people should not get MMR vaccine or should wait,” and that one should “[t]ell” his or her “vaccine provider if the person getting the vaccine ... [h]as a parent, brother, or sister with a history of immune system problems.”  I do not find that this general warning proves that the student has a contraindication for MMR.  Notably, in addition to a family history of immune system problems, the MMR VIS identifies the condition of “[i]s not feeling well” and prior receipt of another vaccination within the past four weeks as conditions about which a vaccine provider should be made aware; obviously these conditions do not, in and of themselves, evince contraindication.  The MMR VIS appears to be a general guide for individuals planning to receive vaccinations and does not, unlike the medical director’s analysis, address I.G.’s unique circumstances.

While I am empathetic to petitioner and I.G.’s circumstances and understand petitioner’s concerns, petitioner has failed to show that respondent’s determination here was arbitrary or capricious.  Accordingly, the appeal must be dismissed (see Appeal of J.S. and D.S., 55 Ed Dept Rep, Decision No. 16,821; Appeal of D.F., 50 id., Decision No. 16,132).

THE APPEAL IS DISMISSED.

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