Appeal of J.G., on behalf of her child, from action of the New York City Department of Education regarding COVID-19 testing.

Decision No. 18,099

(March 21, 2022)

Hon. Sylvia O. Hinds-Radix, Corporation Counsel, attorneys for respondent, Lillian P. Wesley, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) that her child (“the student”) is not entitled to a medical exemption from COVID-19 testing, which respondent required as a condition for in-person learning during the 2020-2021 school year.  The appeal must be dismissed.

In response to the COVID-19 public health emergency, respondent adopted a policy requiring parent or guardian consent for COVID-19 testing of all students as a condition for participation in in-person learning or other in-person school activities.  As relevant here, a medical exemption is available to students who have a “health condition that would make it unsafe to undergo testing (e.g. facial trauma, nasal surgery).”

The student attended school within respondent’s district at all times relevant to this appeal.  Petitioner submitted a request for a medical exemption from COVID-19 student testing on the student’s behalf, citing “[n]ose cauterization in both ... nostrils due to nasal deformity; or vein/artery located at nose tip.”  The request included documentation showing that the student underwent cauterization procedures in 2018 and 2019.  This documentation contained a post-procedure “plan,” including an instruction to “avoid heavy nose blowing and nasal manipulation.”

After speaking with the student’s pediatrician, respondent denied petitioner’s request for a medical exemption on March 26, 2021.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 14, 2021.

Petitioner argues that respondent’s denial of her request for a medical exemption from COVID-19 testing was erroneous and should be reversed in light of the student’s medical history.  She further argues that consent to COVID-19 testing should not be a precondition to in-person learning.

Respondent contends that petitioner has failed to meet her burden of proving that its denial of her request for a medical exemption was arbitrary or capricious.

Initially, I lack jurisdiction to review petitioner’s argument that respondent cannot require parental consent to COVID-19 testing as a precondition for in-person learning.  On February 18, 2021, the New York City Department of Health and Mental Hygiene (“DOHMH”) determined that such testing was necessary “[t]o keep school buildings open for in-person instruction and allow the City to continue to effectively monitor and respond to the pandemic ....”  As explained in Appeal of Grossenbacher (58 Ed Dept Rep, Decision No. 17,657), determinations of local departments of health may not be reviewed in an appeal to the Commissioner under Education Law § 310.  Therefore, petitioner’s argument is dismissed for lack of jurisdiction.[1]

Turning to the merits, 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 that respondent’s determination was arbitrary or capricious.  In an affidavit, the Office of School Health (“OSH”) physician who reviewed petitioner’s request explains that she reviewed the medical records provided by petitioner and spoke with the student’s pediatrician, who completed the exemption request form.  She explains her reasoning in denying the request as follows:

since both procedures were completed in 2018 and 2019, without complications, including exam findings described as “external nose had no significant deformity, normal nasal mucosa and no visualized polyps, purulence or masses,” and the [s]tudent ha[d] not had repeated events requiring follow up care with his pediatrician or an ear, nose, or throat (ENT) doctor, a medical exemption would not be recommended as there was no contraindication to testing.

The OSH physician further avers that the student’s pediatrician “agreed that there was no clinical contraindication to nasal swab testing.”  Petitioner did not submit a reply or otherwise respond to the OSH physician’s assertions.

Based on the evidence in the record, I find that respondent reasonably concluded that sufficient time had passed since the student’s medical procedures such that COVID-19 testing would not pose a risk to his health.  It is reasonable, particularly given respondent’s physician’s discussion with the student’s pediatrician, for respondent to conclude that the post-procedure instruction to “avoid ... nasal manipulation” was not a basis for a medical exemption over a year after the student’s most recent procedure.  Therefore, petitioner has failed to meet her burden of proving that respondent’s determination was arbitrary or capricious.

THE APPEAL IS DISMISSED.

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