Appeal of O.E., on behalf of her child, from action of the Board of Education of the Longwood Central School District regarding immunization.

Decision No. 18,235

(February 1, 2023)

Ingerman Smith, L.L.P., attorneys for respondent, Matthew Guerra, Esq., of counsel

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

The student, who lacks the immunizations required by PHL § 2164, has attended school in respondent’s district since 2020.  In January 2022, petitioner requested that the student be exempted from all required immunizations.  By letter dated September 8, 2022, respondent’s high school principal informed petitioner that the student lacked the immunizations required to attend school, and that if she was not immunized by September 22, 2022, she may be excluded from school.

By letter dated October 11, 2022, the high school principal informed petitioner that the student would be excluded from school because the district had not received proof that the student received, or was in the process of receiving, the required immunizations.  Petitioner’s medical exemption was denied shortly thereafter.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 21, 2022.

Petitioner argues that the student is entitled to a medical exemption from the immunization requirements of PHL § 2164.  She contends that respondent’s denial of her request was arbitrary or capricious because it previously granted her a medical exemption and nothing has changed.

Respondent contends that it reasonably denied petitioner’s medical exemption request because it failed to identify a valid contraindication or precaution to vaccination.

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 ... 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^[1] guidance or other nationally recognized evidence-based standard of care” (10 NYCRR 66-1.1 [l]).

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 not met her burden of proving that respondent’s denial of her medical exemption request was arbitrary and capricious.  Petitioner’s medical exemption request asserted that the following conditions constituted contraindications: “[h]istory of severe atopic dermatitis and allergic reactions.  No prior exposure to vaccines and speech delay.” Petitioner submits no evidence that atopic dermatitis, unspecified “allergic reactions,” or a speech delay are medical contraindications or precautions to a specific immunization consistent with ACIP or another nationally recognized evidence-based standard of care.  By contrast, respondent’s medical director reviewed petitioner’s request and determined that the ACIP guidance contained no precautions or contraindications regarding atopic dermatitis (commonly known as eczema) for any of the immunizations for which the student sought an exemption.  As such, petitioner has failed to meet her burden of proof and the appeal must be dismissed (Appeal of V.T., 60 Ed Dept Rep, Decision No. 17,979; Appeal of McGann, 32 Ed Dept Rep 187, Decision No. 12,800, citing Lewis v Sobol, 710 F Supp 506 [SD NY 1989]; [“A blanket medical exemption [request] without evidence indicating why all immunizations are detrimental to the child is insufficient to meet the standards established by [PHL] §2164”]).

I have considered petitioner’s remaining arguments and find them to be without merit.[2]

THE APPEAL IS DISMISSED.

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