Appeal of M.D., on behalf of his children, from action of the Board of Education of the Franklin Square Union Free School District regarding immunization.

Decision No. 18,491

(September 9, 2024)

The Mermigis Law Group, P.C., attorneys for petitioner, James G. Mermigis, Esq., of counsel

Volz & Vigliotta, P.L.L.C., attorneys for respondent, David H. Arntsen, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Franklin Square Union Free School District (“respondent”) that his two children (the “students”) must be excluded from school for failure to comply with the immunization requirements of Public Health Law (“PHL”) § 2164.  The appeal must be dismissed.

By letter dated January 17, 2024, the New York State Department of Health (“DOH”) notified petitioner that it had determined that the vaccinations reported by the students’ healthcare professional were “invalid and do not satisfy New York’s requirements for school entrance/attendance.”  In a letter dated that same day, respondent informed petitioner that the students would immediately be excluded from school unless petitioner could provide proof that the students had received the required immunizations.[1]  This appeal ensued.  Petitioner’s request for interim relief was denied on June 5, 2024.

Petitioner argues that the students should be considered “in process” for meeting the immunization requirements of PHL § 2164, pursuant to 10 NYCRR 66-1.1(j).  As such, petitioner seeks an order permitting the students to return to school.

Respondent argues, among other things, that the students are not “in process” and that the district properly excluded them from school for failing to comply with applicable immunization requirements.

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.  Pursuant to 10 NYCRR 66-1.1 (j), a child is deemed “in process” of meeting the requirements of PHL § 2164 if he or she “has received at least the first dose in each immunization series” and “has age appropriate appointments to complete the immunization series” (10 NYCRR 66-1.1 [j] [1]).[2]

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 submit sufficient evidence that the students are in process of meeting the requirements of PHL § 2164 with respect to all required immunizations.  Petitioner identified dates when the students received doses of some of the vaccines that they were missing but did not provide any evidence of age-appropriate appointments to complete any of the required immunization series (10 NYCRR 66-1.1[j][1]).  Accordingly, there is no basis to conclude that respondent’s exclusion of the students for lack of immunization was improper (Appeal of J.K., 60 Ed Dept Rep, Decision No. 17,967).

In light of this determination, I need not address the parties’ remaining arguments.

THE APPEAL IS DISMISSED.

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