Kerri W.S. v. Zucker

• Decision Date: 23 December 2021
• Docket Number: 636,CA 20-00854
• Parties: In the Matter of KERRI W.S., PsyD., and Carl J.S., Jr., J.D., M.A., Individually and on Behalf of Their Minor Son T.S., Petitioners-Plaintiffs-Respondents, v. Howard ZUCKER, in His Official Capacity as Commissioner of Health of State of New York, New York State Department of Health, Respondents-Defendants-Appellants, et al., Respondents-Defendants.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 143

161 N.Y.S.3d 567

In the Matter of KERRI W.S., PsyD., and Carl J.S., Jr., J.D., M.A., Individually and on Behalf of Their Minor Son T.S., Petitioners-Plaintiffs-Respondents,

v.Howard ZUCKER, in His Official Capacity as Commissioner of Health of State of New York, New York State Department of Health, Respondents-Defendants-Appellants, et al., Respondents-Defendants.

636

CA 20-00854

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: December 23, 2021

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (DUSTIN J. BROCKNER OF COUNSEL), FOR RESPONDENTS-DEFENDANTS-APPELLANTS.

PATRICIA FINN ATTORNEY, P.C., NANUET (PATRICIA FINN OF COUNSEL), FOR PETITIONERS-PLAINTIFFS-RESPONDENTS.

PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.

OPINION AND ORDER

It is hereby ORDERED that the order so appealed from is modified on the law by granting the motion insofar as it sought to dismiss pursuant to CPLR 3211 (a) (7) the petition-complaint against respondents-defendants-appellants except with respect to the claim challenging 10 NYCRR 66-1.1 (l) on legislative delegation grounds and granting judgment in favor of respondents-defendants-appellants as follows:

It is ADJUDGED AND DECLARED that 10 NYCRR 66-1.1 (l) does not violate the separation of powers doctrine or otherwise exceed the regulatory powers of its promulgator;

and as modified the order is affirmed without costs.

Opinion by NeMoyer, J.:

The legislature has determined that vaccines save lives. It has therefore established a mandatory "program of immunization ... to raise to the highest reasonable level the immunity of the children of the state against communicable diseases" ( Public Health Law § 613 [1] [a] ). And by promulgating 10 NYCRR 66-1.1 (l), respondents-defendants-appellants (defendants) merely implemented the legislature's policy in a manner entirely consistent with the legislative design. We therefore hold that 10 NYCRR 66-1.1 (l) is valid, does not violate the separation of powers doctrine, and does not exceed the authority of its promulgator.

I

"[T]he elimination of communicable diseases through vaccination

[is] ‘one of the greatest achievements’ of public health in the 20th century" ( Bruesewitz v. Wyeth LLC , 562 U.S. 223, 226, 131 S.Ct. 1068, 179 L.Ed.2d 1 [2011] ). Indeed, "routine vaccination is ‘one of the most spectacularly effective public health initiatives this country has ever undertaken’ " ( id. at 245, 131 S.Ct. 1068 [Breyer, J., concurring]).

Take measles

– one of the diseases at issue in this case. The statistics are sobering. "[P]rior to the vaccine, measles killed seven to eight million children each year [across the world]" ( F.F. v. State of New York , 194 A.D.3d 80, 86 n. 3, 143 N.Y.S.3d 734 [3d Dept. 2021], appeal dismissed and lv denied 37 N.Y.3d 1040, 154 N.Y.S.3d 567, 176 N.E.3d 304 [2021] [emphasis added]). Children were not the only victims of measles ; in fact, measles is believed to have killed up to one-third of Hawaii's entire population in the 1850s (see Stanford Shulman et al., The Tragic 1824 Journey of the Hawaiian King and Queen to London: History of Measles in Hawaii , 28:8 Pediatric Infectious Disease Journal 728 [2009]). Thanks to the overwhelming success of the vaccine, however, measles was deemed eradicated from the United States in the year 2000 (see

F.F. , 194 A.D.3d at 82, 143 N.Y.S.3d 734 ), and only 73,400 people worldwide – of any age – are thought to have died from measles in 2015 (see Global Burden of Disease Study 2015 , 388 Lancet 1459 [2016]).

And the smallpox

vaccine actually banished that dreaded disease from the face of the earth altogether. As the Centers for Disease Control and Prevention (CDC) explains, "the last natural outbreak of smallpox in the United States occurred in 1949. In 1980, the World Health Assembly declared smallpox eradicated ..., and no cases of naturally occurring smallpox

have happened since."

"But these gains are fragile" ( Bruesewitz , 562 U.S. at 246, 131 S.Ct. 1068 [concurrence]). Starting "in the 1970's and 1980's vaccines became, one might say, victims of their own success. They had been so effective in preventing infectious diseases that the public became much less alarmed at the threat of those diseases" ( id. at 226, 131 S.Ct. 1068 [majority opinion of Scalia, J.]). And the development of effective policy interventions for those who resist vaccination

has flummoxed officials ever since organized opposition to vaccines first took root in the "apathy or ignorance[of] millions" (L 1968, ch 1094 § 1; see generally

Bruesewitz , 562 U.S. at 227-230, 131 S.Ct. 1068 [majority], 246-248 [concurrence]).

Mandatory child vaccination

statutes are among the most common policy responses to vaccine resistance (see Sean Coletti, Taking Account of Partial Exemptors in Vaccination Law, Policy, and Practice , 36 Conn L Rev 1341, 1341 and n 2 [2004] ). According to an early survey of the topic, "[v]accination has been compulsory in England since 1854, and the ... 1898 [statute] requires every child born in England to be vaccinated within six months of its birth. [Vaccination ] became compulsory in Bavaria in 1807; Denmark, 1810; Sweden, 1814; Würtemberg, Hesse, and other German states, 1818; Prussia, 1835; Roumania, 1874; Hungary, 1876; and Ser[b]ia, 1881" ( Matter of

Viemeister v. White , 179 N.Y. 235, 240, 72 N.E. 97 [1904] ). In New York, the first mandatory child vaccination statute was enacted in 1860 (see

id. at 237, 72 N.E. 97, citing L 1860, ch 438 [page 761]). Today, all parents in New York are required to vaccinate their children against certain specified diseases (see Public Health Law § 2164 [2] ), and no unvaccinated child may attend any school or day care, public or private, for more than 14 days (see § 2164 [7] [a] ).

The rationale for mandatory child vaccination

statutes is well established. " ‘[T]he causative agents for ... preventable childhood illnesses are ever present in the environment, waiting for the opportunity to attack the unprotected individual’ " ( Bruesewitz , 562 U.S. at 246, 131 S.Ct. 1068 [concurrence]) and, as the events of the past 24 months have demonstrated, "vaccines are effective in preventing outbreaks of disease only if a large percentage of the population is vaccinated" ( id. at 227, 131 S.Ct. 1068 [majority] [emphasis added]). "Even a brief period when vaccination

programs are disrupted can lead to children's deaths" ( id. at 246, 131 S.Ct. 1068 [concurrence]).

The danger of failing to maintain herd immunity is no idle concern. For example, starting "in the fall of 2018, a nationwide measles

outbreak occurred that was largely concentrated in communities in Brooklyn and Rockland County with ‘precipitously low immunization rates’ " ( F.F. , 194 A.D.3d at 82, 143 N.Y.S.3d 734 ; see

C.F. v. New York City Dept. of Health & Mental Hygiene , 191 A.D.3d 52, 56-57, 139 N.Y.S.3d 273 [2d Dept. 2020] ). It is commonly accepted that the 2018 measles outbreak was fueled by sub-herd immunity rates traceable to a statutory provision – Public Health Law § 2164 former (9) – that had allowed parents to exempt their children from otherwise mandatory vaccinations on religious grounds (see

C.F. , 191 A.D.3d at 56-58, 71, 139 N.Y.S.3d 273 ). The legislature reacted decisively to the recent measles outbreak by repealing the religious exemption outright (see L 2019, ch 35, § 1 [repealing subdivision (9) of Public Health Law § 2164 ]), and the Third Department rejected a constitutional challenge to the repeal of the religious exemption (see F.F. , 194 A.D.3d at 89, 143 N.Y.S.3d 734 ).

The only remaining exception to the mandatory child vaccination

statute is the so-called medical exemption (see Public Health Law § 2164 [8] ). The medical exemption 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 [the mandatory vaccination statute] shall be inapplicable until such immunization is found no longer to be detrimental to the child's health" (id. [emphasis added]). The statute does not define the phrase "may be detrimental to a child's health."

Following the repeal of the religious exemption, defendants – exercising their statutory authority to "adopt and amend rules and regulations to effectuate the provisions and purposes of [the mandatory vaccination

statute]" ( Public Health Law § 2164 [10] ) – enacted a package of regulatory amendments designed to ensure the appropriate use of medical exemptions going forward. Within that package was a new regulatory provision that defined the phrase "may be detrimental to a child's health" in Public Health Law § 2164 (8) to mean that "a physician has determined that a child has a medical contraindication or precaution to a specific immunization consistent with ACIP guidance or other nationally recognized evidence-based standard of care" ( 10 NYCRR 66-1.1 [l]).¹

II

Petitioners-plaintiffs (plaintiffs) enrolled their son, T.S., in a school for disabled students operated by respondents-defendants Monroe One BOCES, Fairport and Mark Frenzel, in his official capacity as principal of that school (respondents). In October 2019, after the effective date of 10 NYCRR 66-1.1 (l), plaintiffs submitted four certifications from T.S.’s physician to the school's principal that purported to medically exempt T.S. from a particular vaccine mandated by Public Health Law § 2164 (2) (b). The certifications, however, did not state that the subscribing physician had "determined that [T.S.] has a medical contraindication or precaution to a specific immunization," nor that such a determination would be "consistent with ACIP guidance or other nationally recognized evidence-based standard of care" ( 10 NYCRR 66-1.1 [l]). The school's medical director therefore determined – after seeking additional information from T.S.’s physician – that T.S. was not entitled to a medical exemption under Public Health Law § 2164 (8). Citing the...