23nd Annual Pre-Convention School Law Seminar

EXEMPTIONS FOR STUDENT IMMUNIZATIONS

Where has the line been drawn?

October 24, 2019

Rochester Riverside Hotel
Rochester, New York

PRESENTED BY:

Beth L. Sims, Esq. Kathy A. Ahearn, Esq.

Partner Partner
Shaw, Perelson, May & Lambert LLP Guercio & Guercio, LLP
21 Van Wagner Road 24 Century Hill Road
Poughkeepsie, NY 12603 Latham, NY 12110
(845) 486-4200 (518) 690-7000
bethsims@shawperelson.com kahearn@guerciolaw.com

MODERATED BY:

Jay Worona, Esq.

Deputy Executive Director and General Counsel
New York State School Boards Association
24 Century Hill Road
Suite 200
Latham, NY 12110

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 EXEMPTIONS FOR STUDENT IMMUNIZATION
Where has the line been drawn?
23nd Annual Pre-Convention School Law Seminar

October 24, 2019

Presented by:

Beth L. Sims, Esq., Partner

Shaw, Perelson, May & Lambert, LLP

Kathy A. Ahearn, Esq.,

Partner Guercio & Guercio LLP

Moderator:
Jay Worona, Deputy Executive Director and General Counsel
New York State School Boards Association

INTRODUCTION
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 purpose of immunization is to protect children who are immunized as well as the health and
economic well-being of the community (Section 1 of L. 1968, c. 1094)

Public Health Law §2164, as amended by Chapter 35 of the Laws of 2019, prohibits a school from
permitting any child to be admitted to such school, or to attend such school, in excess of 14 days without
sufficient evidence that the child has received all age-appropriate required vaccinations, is immune or has a
valid medical exemption. The 14 days may be extended to not more than 30 days where the student is
transferring from out of state or from another country and can show a good faith effort to get the necessary
evidence and for the 2019-2020 school year where the parent, guardian or any other person in parental
relationship can demonstrate that a child has received the first age-appropriate dose in each immunization
series and that they have age-appropriate scheduled appointments for follow-up doses to complete the
immunization series in accordance with the CDC’s Advisory Committee on Immunization Practices
Recommended Immunization (ACIP) Schedules for Persons Aged 0 through 18.

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 See Generally:

2019-2020 School Year New York State Immunization Requirements for School
Entrance/Attendance
https://www.health.ny.gov/publications/2370_2019.pdf

CDC’s ACIP Vaccine Recommendations and Guidelines can be found at:

https://www.cdc.gov/vaccines/hcp/acip-recs/

CDC’s ACIP Catch-Up Schedule can be found at:

https://www.cdc.gov/vaccines/schedules/downloads/child/0-18yrs-child-combined-
schedule.pdf

I. Elimination of the Religious or Sincerely Held Beliefs Exemption to Immunization

On June 13, 2019, Governor Andrew M. Cuomo signed Chapter 35 of the Laws of 2019 which
repealed Subdivision nine of §2164 of the Public Health Law and eliminated the religious exemption to
school immunization requirements in New York State.

New York joined a small handful of states that do not allow exemptions to immunizations on
religious grounds, including California, Arizona, West Virginia, Mississippi and Maine. The legislative
intent of Chapter 35 was to protect the public health by ending non-medical exemptions from
immunization (See Sponsor’s Mem. Bill Jacket, L 2019, ch 35).

There is no longer a religious or sincerely held beliefs exemption to the requirement that children be
vaccinated against measles and other diseases to attend either:

• public, private or parochial school (for students in pre-kindergarten through 12th grade), or
• child day care settings.

II. What are the school attendance options for an unimmunized child in New York State?

Parents who choose not to vaccinate their children, and whose children do not have a valid medical
exemption, still must ensure that children of compulsory school age are educated and, thus, since they are
not eligible for either public or non-public school attendance will need to provide home instruction
(“homeschooling”) for those children1.

III. What is A Valid Medical Exemption?

The law now only provides one exception to immunization where a licensed physician certifies
that immunization may be detrimental to a child’s health (PHL §2164[8]).
1
See https://www.health.ny.gov/prevention/immunization/schools/school_vaccines/docs/2019-
08_vaccination_requirements_faq.pdf)

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 PHL §2164(8) provides: If any physician licensed to practice medicine in this state certifies
that such immunization may be detrimental to a child’s health, the
requirements of this section shall be inapplicable until such
immunization is found no longer to be detrimental to the child’s
health.

On August 16, 2019, New York State Department of Health (“DOH”) regulations governing were
amended at Subpart 66-12. The emergency amendments included changes to the process and standards for
reviewing and determining student medical exemptions to vaccination requirements. These regulations at
Section 66-1.3(c) now require the following for a valid medical exemption:

An application for medical exemption must:

1. Be on the medical exemption form issued by the Department of Health certifying that the
immunization may be detrimental to a child’s health;
See https://www.health.ny.gov/forms/doh-5077.pdf

2. Be signed by a physician licensed to practice medicine in New York State;

3. Contain sufficient information to identify the medical contraindication to a specific

immunization(s)
See https://www.health.ny.gov/professionals/doctors/conduct/docs/medical_exemptions_guidlines.pdf

4. Specify the length of time that the immunization(s) are contraindicated.

See CDC ACIP guidelines for contraindications and precautions to childhood vaccinations,
available at: https://www.cdc.gov/vaccines/hcp/acip-recs/general-recs/contraindications.html.

5. Be reissued annually

Even where the above criteria are met, the principal or person in charge of the school may still require
additional information supporting the exemption. (See Section 66-1.3(c))

IV. Required Student Exclusion

Generally, a principal or person in charge of a school shall not permit a child to continue to attend such
school for more than 14 days3 unless a person in parental relation to the child has furnished the school
with one of the following:

2
A copy of all of the regulatory changes to Department of Health Regulations at Part 66-1 can be found at the hyperlink below:
https://regs.health.ny.gov/sites/default/files/pdf/emergency_regulations/School%20Immunization%20Requirements_0.pdf
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The 14-day calendar period may be extended to 30 days for students transferring from out-of-state or another country. In
addition, during the 2019-2020 school year only, a child may be permitted to attend if they are “in process” See 66-1-1(3) and
(4)
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 (a) A certificate of immunization from a health care practitioner or from NYSIIS or the CIR,
documenting that the child has been “fully immunized”4 according to the requirements of
section 66-1.1(f) of NYS Public Health Regulations.

(b) Documentation that the child is “in process” 5 of receiving immunizations as defined in
section 66-1.1(j) of NYS Public Health Regulations. A principal or person in charge of a school
shall not refuse to admit a child to school, based on immunization requirements, if that child is
in process.

(c) A signed, completed sample medical exemption form issued by the NYSDOH or
NYCDOHMH or a signed statement 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 exemption6.

V. Guidance on the Implementation of the New Law

The following “Frequently Asked Questions” Joint Guidance documents have been issued by the
New York State Education Department, Department of Health and Office of Children and Family Services
clarifying the obligations of school districts when addressing student immunization matters for the 2019-
2020 school year and beyond:

1. August 18, 2019

https://www.health.ny.gov/prevention/immunization/schools/school_vaccines/docs/2019-
08_vaccination_requirements_faq.pdf

2. June 22, 2019

https://www.health.ny.gov/publications/2170/docs/vaccine_requirements_faq.pdf

3. June 18, 2019

https://www.health.ny.gov/publications/2170/docs/nonmedical_vaccine_exemption_faq.pdf

VI. Appeals of Immunization Determinations

Education Law §310(6-a) allows an appeal to the Commissioner of the State Education Department
from persons considering themselves aggrieved by an action taken by “a principal, teacher, owner or other
person in charge of any school in denying a child admission to, or continued attendance at, such school for
lack of proof of required immunizations in accordance with” Public Health Law §2164. Such appeal may

4
See 66-1.3(f) for definition of “fully immunized”
5
See 66-1.3(j) for definition of “in process”-See also subparagraph (4) thereof for exclusion requirement when no longer “in
process”
6
See 66-1.3(c) for elements of a valid medical exemption, See also 66-1.3(g) and (h) for definitions of proof of “immunity” and
“serologic test”
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include a request for a “stay” of the school’s action while the appeal is pending before the Commissioner.
Information regarding the appeal process is available at: http://www.counsel.nysed.gov/appeals/.

VII. Decisions of Interest

1. F.F. on behalf of her minor children, et. al. v. State of New York; Andrew Cuomo, Governor
and Letitia James, Attorney General, 2019 NY Slip Op 29261 decided on August 23, 2019
Supreme Court Albany County

The lawsuit, filed July 10, 2019 on behalf of 55 New York families who had religious vaccination
exemptions, challenged the constitutionality and legality of legislation, enacted June 13, 2019, which
repealed New York's Public Health Law provision allowing religious exemptions from mandatory
vaccinations for children who attend most public and private schools in the State of New York.

The named plaintiffs are parents of diverse religious beliefs who had obtained a religious exemption or
who had qualified for a religious exemption from mandatory vaccinations. Seeking to litigate the case
as a class action, plaintiffs claim that New York's repeal of the religious exemption was based on
religious discrimination and violates their rights to free exercise of religion under the First Amendment
of the United States Constitution and Article 1, § 3 of the New York Constitution. They also claimed
that the repeal violates the Equal Protection Clause of the United States Constitution and forces
plaintiffs to engage in compelled speech or violate New York's compulsory [*2]education laws.

On July 12, 2019, Supreme Court (Mackey, J.) denied plaintiffs' request for a temporary restraining
order. The preliminary injunction enjoining enforcement of the legislative repeal of the religious
exemption was denied on August 23, 2019 by Judge Denise Hartman because in the court’s opinion,
the plaintiffs did not demonstrate a likelihood of success on the merits and the legislative repeal of the
religious exemption remains in effect.

2. V.D., et al. v. State of New York 2019 WL 3886622 (E.D.N.Y. 8/19/19)

In this federal case, six parents of children with disabilities claimed that the elimination of the religious
immunization exemption pursuant to NYS Public Health Law violated their children's rights to special
education services under the federal Individuals with Disabilities Education Act (IDEA). This request
for a preliminary injunction was denied by the Court on August 19, 2019.

The case was voluntarily dismissed on Thursday, August 22, 2019, three days after U.S. District Judge
Allyne Ross denied the plaintiffs' motion for a preliminary injunction.

3. Appeal of E.C. (Decision No. 17,638, May 8, 2019).

A family history of a blood-clotting disorder provided a physician’s opinion that the student should not
be vaccinated for measles, mumps and rubella (the “MMR” vaccine).

The physician cited (i) the girl’s adverse reaction to the varicella vaccination and (ii) the fact that her
sibling developed the blood-clotting disorder shortly after having received the MMR vaccination. After

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consulting with and on advice of a NYSDOH medical expert, the District denied the request for a
medical exemption.

Subsequently, the student’s parent provided additional information for consideration by the District.
The District again asked the DOH expert, who in turn sought input from the U.S. Centers from Disease
Control and the Johns Hopkins University Bloomberg School of Public Health. A written report was
prepared and concluded that there was no evidence that “this student’s family history of [the blood-
clotting disorder was] associated with an increased risk of [the blood-clotting disorder] after MMR
vaccine beyond that in the general population.”

The school district denied the student a medical exemption for a second time, and the student’s parent
appealed to the Commissioner of Education. The Commissioner upheld the school district’s denial of
the exemption explaining that “[w]hile I am empathetic to petitioner and [the student’s] circumstances
and understand petitioner’s concerns, petitioner has failed to show that respondent’s determination here
was arbitrary or capricious.”

4. Lynch v. Clarkstown Cent. School Dist., 155 Misc 2d 846 (Supreme Court Rockland County
1992)

The court rejected Petitioners’ argument that the school district was required to accept a doctor’s note
at face value, without further investigation.

Petitioners sought a medical exemption from immunization for their daughter, who suffered from Rett
Syndrome. Petitioners submitted a certificate from a doctor stating that “all vaccinations are
contraindicated indefinitely.” Prior to denying the request, the school district’s chief medical officer
reviewed the medical research on Rett Syndrome, consulted with the doctor who wrote the certificate,
and also conferred with specialists in pediatric neurology who concluded that “there were no reasons
not to immunize a child with Rett Syndrome.” In upholding the district’s denial of petitioners’ request,
the court stated: “The court rejects petitioners’ argument that the District was required to accept the
[doctor’s] note at face value, without further investigation. At that stage, the District was following the
regulation promulgated by the State Department of Health ... as outlined in an internal memorandum
prepared by its general counsel.” The court further noted that the memorandum stated, “The medical
exemption under P.H.L. Section 2164 is available only when a vaccination would actually be
detrimental to a student’s health during that period and not because the student has a note from a
physician excusing the student from immunization.

A medical certification must contain sufficient information to identify the contraindication to

immunization and identify the time at which vaccination would no longer be detrimental” (Lynch at
851).

5. Appeal of McGann (32 Ed Dept Rep 187, Decision No. 12,800)

A parent requested a medical exemption based on a written statement from her child’s doctor that
“immunizations would be harmful to the ... child’s health. This includes MMR, DPT, Polio and

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HIB.” The District requested that the child’s physician to explain why the child could not be
vaccinated, but neither the physician nor petitioner responded.

The District contacted the Department of Health(“DOH”) for further information, and was advised by
DOH’s General Counsel and Director of General Communicable Disease Activities that “without a
specific explanation of harmful effects, the district should refuse to allow the student to continue to
attend school until immunized.” The Commissioner found that District was within its rights “to
demand additional information to ascertain why all immunizations would be detrimental, and to deny
the exemption when no additional information was forthcoming.”

6. Appeal of M.E.F. (43 Ed Dept Rep 248, Decision No. 14,987)

Respondent denied petitioner’s request for a medical exemption based only on an oral statement of a
DOH employee. In sustaining the appeal, the Commissioner stated:

[A]n oral statement of a DOH employee, without more, is an insufficient reason to reject petitioner’s
request for a medical exemption. There is no evidence in the record regarding the basis for or accuracy
of DOH’s assessment.

7. Lewis v. Sobol, 710 F. Supp. 506 (S.D.N.Y. 1989)

A blanket medical exemption request without evidence indicating why all immunizations are
detrimental to the child is insufficient to meet the standards established by Public Health Law 2164.