Appeal of T.M., on behalf of her child, from action of the Board of Education of the Sachem Central School District regarding immunization.

Decision No. 18,416

(June 3, 2024)

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

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Sachem 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.

Prior to the event described herein, the student attended elementary school in respondent’s district.  By form dated June 2, 2023, petitioner sought a medical exemption on behalf of the student from the measles, mumps, and rubella (MMR) and varicella vaccinations.  The medical exemption form stated that the student experienced “severe anaphylaxis” after ingesting “egg and egg products.”  Respondent denied this request by letter dated September 8, 2023.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 16, 2023.

Petitioner argues that respondent’s determination was arbitrary and capricious because it did not sufficiently consider the pediatrician’s medical opinion or vaccine manufacturer’s informational pamphlet.  Petitioner further argues that respondent granted a medical exemption for the student on the same basis during the previous school year.  Petitioner seeks a determination that the student is entitled to a medical exemption from the immunization requirements of PHL § 2164. 

Respondent argues that its denial of petitioner’s medical exemption request was based upon the evidence before it.

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 contends that the student is entitled to a medical exemption because the

MMR vaccine manufacturer notes in the informational insert provided in the vaccine packaging [state] that “[i]ndividuals with a history of anaphylactic [reactions] … subsequent to egg ingestion may be at an enhanced risk of immediate-type reaction after receiving M-M-R II vaccine.”

As proof, petitioner submits a copy of the manufacturer insert for the MMR-II vaccination manufactured by Merck & Co., Inc.

Although the insert urges caution in administering the MMR vaccine under these circumstances, petitioner has not proven that the student’s egg allergy constitutes a contraindication or precaution under ACIP or another nationally recognized evidence-based standard of care (Appeal of M.P., 60 Ed Dept Rep, Decision No. 17,968).  Indeed, the Centers for Disease Control (CDC) has issued guidance identifying “allergy to eggs” as a condition commonly misperceived as a contraindication or precaution to the MMR vaccine under ACIP (see Centers for Disease Control, “Contraindications and Precautions: General Best Practice Guidelines for Immunization:  Best Practices Guidance of the Advisory Committee on Immunization Practices (ACIP),” https://www.cdc.gov/vaccines/hcp/acip-recs/general-recs/contraindication... [last accessed May 17, 2024]).  Moreover, petitioner has not submitted any proof that an egg allergy constitutes a contraindication or precaution for varicella.  As such, she has not met her burden of proof (see Appeal of V.T., 60 Ed Dept Rep, Decision No. 17,979; Appeal of E.Y., 60 id., Decision No. 17,891). 

Moreover, nothing entitles the student to a continuing medical exemption based on prior years because medical exemptions are granted on a year-to-year basis (Appeal of O.E., 62 Ed Dept Rep, Decision No. 18,235). 

I have considered the parties’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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