Immunization Update

Under New York Public Health Law § 2164(7)(a), all schools must ensure that students attending school in grades Pre-K to 12 have received mandatory vaccinations. School districts may not permit a student to attend school in excess of fourteen days without a certificate demonstrating compliance. The only exemption to the immunization requirement is a certification from a licensed physician in New York stating that “such immunization may be detrimental to a child’s health”. The requirement to be fully immunized applies to all students, including those attending school under a hybrid or remote model.

Grace Period Extended For Remote Learners

On October 12, 2020, the NYS Department of Health first suspended the requirement that every student provide proof of immunizations. The Department of Health concluded that due to the pandemic, it was difficult to obtain vaccines. Based on this determination, the Department of Health gave fully remote students only, a thirty day grace period to obtain State mandated immunizations, provided a parent signed an affidavit indicating his/her intention to have the student receive all mandatory immunizations within the thirty day grace period. This grace period has been extended every thirty days since October 12, 2021 and was recently extended again on April 9, 2021. The most recent extension is carried through the end of the academic school year for remote only students whose parents intend to have such students receive required immunizations during the grace period.

School Districts Maintain Discretion Over Medical Exemptions

In two recent decisions the Commissioner of Education demonstrated that school districts continue to maintain discretion in denying medical exemptions.

In Decision No. 17968 (March 17, 2021), a parent in the New York City school system requested a medical exemption from the MMR vaccine in October 2018. The physician affidavit supporting the exemption application expressed concerns about the student’s egg allergy and prior history of fever following the administration of combination vaccinations, albeit with no severe reactions. The physician with the NYC Department of Health determined that there was no contraindication, however, the district granted the student a temporary medical exemption for the remainder of the school year to allow the parents time to consider the option of receiving vaccinations in a controlled setting.

The following school year (2019-20), the parents submitted another application for exemption from certain vaccines on the basis that such vaccines would place the student in medical danger given his severe allergies. This application was denied. The parent appealed to the Commissioner, contending that the school district’s decision was irrational because the parent submitted the same supporting medical documentation as the prior year when the application had been granted. Ultimately, the Commissioner determined that the school district did not act arbitrarily and capriciously, and the parent failed to submit sufficient evidence to support the medical exemption that was consistent with the Advisory Committee on Immunization Practices (“ACIP”) or other nationally recognized evidence-based standards of care.

In Decision No. 17979 (April 1, 2021), a parent submitted a request for a medical exemption on behalf of a student, signed by a physician assistant in September 2019. The physician assistant indicated that the student required an exemption to some, but not all mandated vaccines. Upon initial review, the school physician determined the medical exemption request did not set forth valid contraindications/precautions to the vaccines for which the student sought exemptions and the request was signed by a physician assistant instead of physician licensed in New York, as required by the Public Health Law. The school district raised these issues and received another exemption application which corrected certain errors and contended the student suffered from seizures brought on by certain vaccines. The medical support for the conclusions of the physician were questioned by the school district. In total the parent submitted four applications for a medical exemption in September and October 2019. All applications were denied by the district.

The Commissioner ultimately found that the parent failed to show that the school district’s determination was arbitrary or capricious. This conclusion was based on the determination that the parent did not offer sufficient evidence to contradict the school district’s conclusion, such as additional evidence to establish that the student had a precaution or a contraindication to any of the eight required vaccinations consistent with ACIP guidance or other nationally recognized evidence-based standard of care.

Please note, although the Commissioner’s decisions have been supportive of school districts’ discretion to deny medical exemptions, there are multiple steps a district must take before denying such application. Be sure to work with your school law attorney should you have questions regarding a medical exemption application.