Appeal of P.C, on behalf of his child, from action of the Board of Education of the Spencerport Central School District regarding immunization.

Decision No. 18,412

(May 21, 2024)

Harris Beach PLLC, attorneys for respondent, Sara E. Visingard and Jared Calderon, Esqs., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Spencerport Central School District (“respondent”) that his 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 attended middle school in respondent’s district at the time of the events described herein.  On September 18, 2023, petitioner submitted aa medical exemption on behalf of the student from the tetanus, diphtheria, pertussis (“DtaP”) vaccine.  Following a conversation with a nurse practitioner employed by the school, petitioner submitted a second medical request.

By letter dated November 2, 2023, the middle school principal determined that the student was not entitled to a medical exemption.  The principal informed petitioner that the student would be excluded from school as of November 6, 2023, unless he obtained the required immunization.[1]  This appeal ensued.  Petitioner’s request for interim relief was denied on November 8, 2023.

Petitioner argues that the student is entitled to a medical exemption from the immunization requirements of PHL § 2164 based on his history of reactions to vaccines, as documented in the second medical exemption request and supporting documentation.

Respondent argues that its denial of petitioner’s medical exemption request was lawful.

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[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).

Petitioner has failed to meet his burden to prove that the student suffers from any medical contraindication or precaution to DtaP consistent with a nationally recognized evidence-based standard of care.  The first medical exemption form submitted by petitioner stated that the student had a serious reaction, including “GI and neurologic changes,” in response to administration of the DtaP vaccine as well as “autoimmune issues.”  According to the physician who signed the form, “[a]n immunological vaccine challenge may put this child at risk for serious health consequences.”  The second medical exemption form submitted by petitioner stated that the student has a history of “high fever … facial swelling, change in mental status, lethargy, generalized rash, swelling and soreness at injection site, nausea, vomiting, migraine with light sensitivity.”  Petitioner does not allege, and the record does not show, that any of these conditions constitute a contraindication or precaution to the DtaP vaccine under ACIP or another nationally recognized evidence-based standard of care (see Appeal of V.T., 60 Ed Dept Rep, Decision No. 17,979; Appeal of E.Y., 60 id., Decision No. 17,891).   As such, the appeal must be dismissed.

To the extent they are not addressed herein, petitioner’s remaining contentions are without merit.

THE APPEAL IS DISMISSED.

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