Appeal of V.G. and J.G., on behalf of their children, from action of the Hebrew Academy of the Five Towns and Rockaway regarding immunization.

Decision No. 18,148

(July 7, 2022)

Moskowitz & Book, LLP, attorneys for respondent, Chaim B. Book and Sheryl B. Galler, Esqs., of counsel

ROSA., Commissioner.--Petitioners challenge a determination of the Hebrew Academy of the Five Towns and Rockaway (“respondent”) that their two children (“the students”) are not entitled to a medical exemption from the immunization requirements of Public Health Law (“PHL”) § 2164.  The appeal must be dismissed.

The students were accepted to respondent’s school for the 2021-2022 school year.  Thereafter, petitioners submitted medical exemption request forms, on behalf of the students, seeking exemptions from six of the immunizations required by PHL § 2164.  Respondent sought additional information from petitioners and the physician who signed the request forms.  After receiving this information, respondent consulted with the New York State Department of Health (“DOH”).  DOH recommended that all requested exemptions be denied, with the exception of the measles, mumps, and rubella (“MMR”) vaccine for the older student. 

By letters dated December 20, 2021, respondent determined that the request for the older student was granted as to the MMR vaccine but otherwise denied.  This appeal ensued.  A request for interim relief was denied as moot.[1]

Petitioners admit that the appeal is untimely but request that any delay in bringing their appeal be excused.  On the merits, petitioners argue that the students are entitled to medical exemptions from the vaccination requirements of PHL § 2164. 

Respondent contends that the appeal must be dismissed as untimely and on the merits.  

The appeal must be dismissed as untimely.  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).  A return receipt for respondent’s December 20 decision shows that petitioners received it on December 24, 2021.  Petitioners commenced the appeal by service on respondent on February 9, 2021, well over 30 days after December 24, 2021. 

Petitioners allege that the following circumstances constitute good cause for the delay: petitioner J.G.’s delivery of a fourth child on December 10, 2021; petitioner J.G.’s subsequent illness; and the fact that the school was “closed for break between January 17-24[,] 2022.”  While I am sympathetic to petitioners’ circumstances, I find that they have failed to demonstrate good cause for their delay in challenging respondent’s determination.  While petitioner J.G.’s circumstances may have precluded her from preparing a timely appeal, there is no evidence that petitioner V.G. was similarly constrained (see Appeal of Moore, 41 Ed Dept Rep 436, Decision No. 14,738).  Additionally, while the school was closed during a portion[2] of the 30-day time limitation, petitioners have not alleged that they were unable to serve a copy of the petition during this closure.  And, ultimately, the petition was served over a week after the school reopened.  Therefore, petitioners have failed to establish good cause for the delay.

Even if timely, the appeal would be dismissed on 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 exception to the immunization requirement:  immunization is not required if a New York-licensed physician certifies that immunization may be detrimental to a child's health (PHL § 2164 [8]).  Pursuant to applicable DOH regulations,

A principal or person in charge of a school shall not admit a child to school unless a person in parental relation to the child has furnished the school with … [a] signed, completed medical exemption form approved by the NYSDOH or NYC Department of Education 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.  The medical exemption must be reissued annually.  The principal or person in charge of the school may require additional information supporting the exemption.

(10 NYCRR 66-1.3 [c]).  The phrase “[m]ay be detrimental to the child’s health” means “that a physician has determined that a child has a medical contraindication or precaution to a specific immunization consistent with ACIP[3] guidance or other nationally recognized evidence-based standard of care” (10 NYCRR 66-1.1 [l]).

Petitioners explain that because the older student had a severe adverse reaction to the MMR vaccine, both students are undergoing testing to determine the cause thereof.  Petitioners allege that they decided to stop giving the students vaccines “after being [so] advised by multiple doctors.”  Petitioners’ medical exemption requests indicate that both students are “undergoing extensive laboratory testing and any vaccination may cause diagnostic confusion and be detrimental to patient’s health; risk outweighs benefit at this time.”  The request form for the older student also refers to a history of severe adverse reaction to the MMR vaccine.  In response to respondent’s request for additional information, the physician who signed the request forms explained that the students were undergoing testing to “rule out the following:  allergy to vaccine ingredients, underlying low level infection, [and] heavy metal accumulation.”

Petitioners’ allegations do not satisfy the legal standard set forth in 10 NYCRR 66-1.1.[4]  Specifically, the exemption requests and additional information do not identify a medical contraindication to the specific immunizations for which petitioners sought exemptions.  As DOH reasoned, ACIP “does not recognize laboratory testing, low level infection [or] heavy metal accumulation as a contraindication or precaution to these vaccines, and the information provided did not cite any other nationally recognized evidence-based standard of care to support this assertion.”  Petitioners have produced no evidence to contradict DOH’s reasoning.[5]  Accordingly, even if the appeal were not dismissed as untimely, it would be dismissed on the merits.  

THE APPEAL IS DISMISSED.

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