Appeal of L.F. and S.W., on behalf of their children, from action of the New York City Department of Education regarding immunization.

Decision No. 18,274

(May 11, 2023)

Hon. Sylvia O. Hinds-Radix, Corporation Counsel, attorneys for respondent, Marlena Z. Smith, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal from a determination of the New York City Department of Education (“DOE” or “respondent”) that two of their children (the “students”) are not entitled to medical exemptions from the immunization requirements of Public Health Law (“PHL”) § 2164.  The appeal must be dismissed.

Petitioners requested medical exemptions to several required immunizations on behalf of the students for the 2021-2022 school year.[1]  The medical exemption requests were materially identical to requests respondent had previously denied in connection with the 2018-2019 school year.  Accordingly, respondent denied petitioners’ new requests for medical exemptions from immunization requirements.  By determination dated June 13, 2022, respondent dismissed petitioners’ administrative appeals thereof.  This appeal ensued.  Petitioners’ request for interim relief was denied on September 15, 2022. 

Petitioners argue that the students are entitled to medical exemptions from the immunization requirements of PHL § 2164 because the students’ older siblings suffer from mitochondrial disease.  Petitioners express their concern that immunizations will trigger the onset of mitochondrial disease symptoms in the students.

Respondent argues that the appeal must be dismissed as untimely.  On the merits, respondent argues that petitioners failed to meet their burden of proof because mitochondrial disease is not a recognized contraindication to any of the vaccinations required by PHL § 2164.

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).

Petitioners request that I excuse their delay because family members and nurses who assist their older children suffered from COVID-19 during the 30-day time limitation.  However, the documentation submitted by petitioners shows only that one family member went to urgent care for COVID-19 symptoms on July 10, 2022.  While I am sympathetic to these circumstances, I cannot find that this constitutes good cause as petitioners commenced this appeal nearly two months after the family member went to urgent care.  Accordingly, the appeal must be dismissed as untimely (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of Jarosz, 34 id. 600, Decision No. 13,423).

Even if the appeal were not dismissed as untimely, it 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]).  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^[2] 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).

Here, petitioners seek medical exemptions for the students based upon health concerns of their older siblings and the possibility that the students have mitochondrial disease.  However, petitioners present no evidence that a physician has determined that the students have a medical contraindication or precaution to any specific immunization consistent with ACIP guidance or another nationally recognized evidence-based standard of care.  Petitioners have also failed to demonstrate that the students, whom they attest are healthy, have mitochondrial disease or that such disease is a precaution or contraindication to any of the vaccines for which they seek exemptions.  In fact, the physician consulted by petitioners advised the family that while vaccination presented some risk, the students faced a greater risk if they contracted one of the diseases that the school-age vaccinations are designed to prevent.  Accordingly, I find that petitioners have failed to demonstrate a clear legal right to their requested relief (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).  

THE APPEAL IS DISMISSED.

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