Appeals of M.G.R., on behalf of her children, from action of the Leonard E. Burket Christian School regarding immunization.

Decision No. 18,246

(March 6, 2023)

ROSA., Commissioner.--Petitioner appeals[1] a determination that her two children (the “students”) are not entitled to medical exemptions from the immunization requirements of Public Health Law (“PHL”) § 2164 for the 2022-2023 school year.  The appeals must be sustained in part. 

The students attend the Leonard E. Burket Christian School (“respondent”).  By requests dated July 19, 2022, petitioner sought medical exemptions to the immunization requirements of PHL § 2164 on behalf of the students.  Both requests sought exemptions from all required immunizations citing “hereditary immunodeficiency,” previous allergic reactions, and onset of autoimmune conditions post vaccination (“ASIA syndrome”).  The exemption requests also identified diagnoses of “methylation disorder,” “mitochondrial dysfunction,” and “recent genetic findings.”  The requests further opined that the students could not “receive any vaccines containing toxic adjuvants including formaldehyde, PEGS, [and] aluminum.”  Finally, the exemption requests indicated that the students were “at an increased risk of Guilla[i]n-Barre post vaccination due to [a] pre-existing autoimmune condition.”

By email dated October 4, 2022, the medical director of the public school district that provides health and welfare services to respondent denied petitioner’s requests (see Education Law § 912).  Based on the record, it appears that the decision was transmitted electronically to respondent, but not to petitioner.  These appeals ensued.  Petitioner’s request for interim relief in connection therewith was denied as moot.[2]

Petitioner contends that the students are entitled to medical exemptions from the immunization requirements of PHL § 2164.  Respondent does not oppose petitioner’s appeals.

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

This appeal must be remanded to respondent to render a decision on petitioner’s requests.  The decision of whether to grant or deny a medical exemption request rests with the “principal or person in charge of a school” (10 NYCRR 66-1.3; see PHL § 2164 [7] [a]).  While respondent may consult with medical professionals such as a school district’s medical director, its principal or head of school is ultimately responsible for making this determination (Appeal of I.K.W., 61 Ed Dept Rep, Decision No. 18,060; Appeal of M.M., 60 id., Decision No. 17,934).

In so doing, respondent must consider the voluminous evidence of the students’ medical conditions submitted by petitioner.  She has submitted letters from five different physicians that recommend that the students should not receive vaccinations.  The physicians cite immunodeficiencies or autoimmune disorders and explain that such conditions are a contraindication to live vaccines pursuant to ACIP.  Another doctor explains that the students should not receive vaccines containing aluminum, mercury, formaldehyde, or polyethylene glycol.  The record contains no information that contradicts this showing; the medical director’s written denial of petitioner’s requests lacks any reasoning whatsoever.[4]

Accordingly, I remand the matter to respondent to make a new determination containing sufficient information to determine why each of the alleged contraindications and precautions cited by the students’ physicians does not entitle the students to the specific vaccine exemptions sought.  Petitioner may appeal any adverse decision to the Commissioner within 30 days of such decision (Education Law § 310 [7]).

THE APPEALS ARE SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the matters are remitted to respondent for new determinations in accordance with this decision.

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