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

Decision No. 18,084

(January 31, 2022)

            Georgia Pestana, Corporation Counsel of the City of New York, attorneys for respondent, Chlarens Orsland, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent” or “DOE”) that her child (“the student”) is not entitled to a medical exemption from the immunization requirements of the Public Health Law (“PHL”) § 2164.  The appeal must be dismissed.

The student is a resident of respondent’s district.  He requires two vaccinations for which petitioner seeks a medical exemption:  Tdap and meningococcal (MenACWY).  Petitioner initially submitted a medical exemption request for Tdap for the 2018-2019 school year.  Respondent denied this request on February 27, 2019.

Petitioner then submitted an exemption request for Tdap and meningococcal for the 2019-2020 school year.  On February 28, 2020, respondent “approved” this request “until June 30, 2020.”  Respondent’s agency medical director of the Office of School Health (“medical director”) explains that she granted this temporary exemption because information submitted by petitioner suggested that “treatments ... being provided [to the student] would improve his immune system enough to allow him to be vaccinated in the near future.”

In a form completed on June 16, 2020, a physician requested a medical exemption for Tdap and meningococcal on the student’s behalf.  His explanation consisted of the following statement:

(ASIA) (Autoimmune (Auto-Inflammatory) Syndrome Induced by Adjuvants) is permanent [and] remains an absolute contraindication to re-exposure to aluminum adjuvants.  My exposition of the tetanus question is also unchanged  (please see the attached).

The physician attached a letter dated November 5, 2019 in which he further explained his recommendations.  Respondent denied petitioner’s request on September 21, 2020.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 31, 2021.

Petitioner asserts that the student lost his “immunological tolerance” following administration of a flu (H1N1) vaccination when he was 18 months old.  Thereafter, he received care from a physician who “cured” him of his ailments.  This physician asserts that the student “has protective antibodies against all of the infectious diseases in question”; that there is no “urgency for him to receive a tetanus booster because it is not contagious”; and that the Tdap vaccination contains an “aluminum adjuvant,” which is a contraindication.  Petitioner also suggests that respondent’s denial was arbitrary because “[n]othing has changed since the exemption was last granted ....”  Petitioner seeks exemptions for both the Tdap and meningococcal vaccines.

Respondent argues that the appeal is untimely, and that petitioner failed to provide sufficient evidence that the required vaccinations would be detrimental to the student’s health.  Specifically, respondent asserts that petitioner has not proven that her concerns constitute contraindications or precautions under ACIP[1] guidelines.

First, with respect to the timeliness of the appeal, an appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

Petitioner initially served a copy of the petition on respondent on March 18, 2021.  In a letter dated March 22, 2021, my Office of Counsel returned petitioner’s submission because it failed to contain the notice required by 8 NYCRR 275.11.  This letter further informed petitioner that if she served a corrected petition within two weeks (i.e., by April 5, 2021), the appeal would be deemed to have been initiated on the original date of service.  Petitioner served a corrected petition prior to April 5, 2021; thus, I decline to dismiss the appeal as untimely.

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 exemption to the immunization requirement, whereby an immunization is not required if a physician licensed in New York State “certifies that such immunization may be detrimental to a child's health” (PHL § 2164 [8]).  The medical exemption applies “until such immunization is found no longer to be detrimental to the child’s health” (PHL § 2164 [8]).  In August 2019, the New York State Department of Health amended the definition of the phrase “[m]ay be detrimental to the child’s health,” as set forth in its regulations, to mean “that a physician has determined that a child has a medical contraindication or precaution to a specific immunization consistent with ACIP guidance or other nationally recognized evidence-based standard of care” (10 NYCRR 66-1.1 [l]).[2]

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).

Petitioner has failed to meet her burden of proving a contraindication or precaution to Tdap or meningococcal consistent with ACIP guidance or other nationally recognized evidence-based standard of care.  Initially, petitioner asserts that the student has “protective antibodies” that obviate the need for vaccination.  In response, the medical director contends that “the serology [the physician] relies on does not meet the requirement for ... Tdap and MenACWY.”  The medical director cites to publications by the National Center for Biotechnology Information (within the National Institutes of Health) and the Centers for Disease Control in support of her position.  Petitioner did not respond to these assertions.  As such, she has failed to meet her burden of proof.

Similarly, petitioner has not demonstrated that the student’s autoimmune disorder or sensitivity to aluminum adjutants constitute precautions or contraindications as defined by the ACIP or another nationally recognized standard of care.  The medical director asserts that “it is the consensus of the American medical community that persons with auto-immune disease can be safely vaccinated; contraindications tend to arise from the treatments for those diseases, not the vaccine.”  The medical director cites to a publication of the Food and Drug Administration (FDA) in support of her position.  This proposition is further supported by ACIP guidance, which only makes reference to autoimmune disease as a “[c]ondition [ ] commonly misperceived as [a] contraindication [ ] or precaution [ ]” for the hepatitis B vaccine (Centers for Disease Control, “General Best Practice Guidelines for Immunization: Best Practices Guidance of the Advisory Committee on Immunization Practices (ACIP),” available at https://www.cdc.gov/vaccines/hcp/acip-recs/general-recs/contraindication... [last accessed Jan. 21, 2022]).  Therefore, petitioner has also failed to meet her burden of proof on this claim.[3]

Petitioner additionally suggests that respondent acted arbitrarily by “granting” her request in February 2020 and then denying a substantially similar request on September 21, 2020.  As noted above, the medical director indicates that she granted the February 2020 request based on her expectation that “the treatments ... being provided would improve [the student’s] immune system enough to allow him to be vaccinated in the near future.”  It is unclear whether the medical director conveyed this reasoning to petitioner; the letter merely states that “the request for exemption ... has been approved until June 30, 2020.”  Nevertheless, I find that respondent has sufficiently explained why it granted the four-month extension.  This limited approval is generally consistent with respondent’s denial of petitioner’s medical request for the preceding (i.e., 2018-2019) school year (see Appeal of M.P., 60 Ed Dept Rep, Decision No. 17,968).  Going forward, I admonish respondent to ensure that it communicates to parents any conditions that it has attached to medical exemptions.

Finally, I have no authority to consider petitioner’s argument that there is no “urgency” for the student to receive a tetanus booster.  Tetanus is among the diseases for which children must demonstrate proof of vaccination to attend school.  That obligation is imposed by PHL § 2164, a statute that I have no authority to disregard (Appeal of R.P., 61 Ed Dept Rep, Decision No. 18,015; Appeal of J.A., 60 id., Decision No. 17,984).

My review in this appeal is limited to the question of whether petitioner satisfied the legal standard imposed by 10 NYCRR 66-1.1.[4]  For the reasons described above, I am constrained to conclude that she did not satisfy that standard (see Appeal of E.Y., 60 Ed Dept Rep, Decision No. 17,891; Appeal of J.S. and D.S., 55 id., Decision No. 16,821; Appeal of D.F., 50 id., Decision No. 16,132).  I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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