Source: Children’s Health Defense

Some New York school districts are violating state and federal law by overriding physicians and denying medical vaccine exemptions for students, Children’s Health Defense (CHD) warned in a letter sent Monday to all New York state boards of education and superintendents.

The letter, written by attorneys on behalf of CHD, warned school districts that they may face legal action if they continue to reject medical exemptions certified by students’ physicians.

The letter says:

“School districts lack authority to override determinations made by a New York State licensed physician regarding a child’s need for a medical exemption from one or more vaccines under the New York State Public Health Law …

“… Any continued practice of substantively overriding or second-guessing determinations made by a child’s treating physician regarding medical exemptions will be treated as unlawful discrimination and may result in immediate legal action, including a potential class action lawsuit.”

The letter comes less than a month after a federal judge in New York ruled in favor of a preliminary injunction allowing a teenage girl, Sarah Doe, to return to classes pending the outcome of her lawsuit against the school district.

Sarah and her mother sued Oceanside Union Free School District after the district rejected her request for a medical vaccine exemption and barred her from attending school. CHD funded the lawsuit.

At least six treating physicians certified that Sarah could be harmed or killed if she received the hepatitis B vaccine, as severe reactions to previous doses left her sick and disabled. Yet the school district disregarded Sarah’s doctors and repeatedly denied her exemption requests.

On Aug. 12, the U.S. District Court for the Eastern District of New York found that Sarah’s medical exemption was “facially valid” and her discrimination claims under state law and the federal Americans with Disabilities Act (ADA) had a clear likelihood of success, the CHD letter said. Sarah returned to school today.

CHD CEO Mary Holland said New York’s ongoing trend of denying medical exemptions sparked CHD’s litigation and its Sept. 1 letter:

“It is stunning that CHD had to litigate the issue that a doctor’s judgment trumps that of a school district on whether to enforce a medical exemption to vaccination.

“The notion that it was ever acceptable for the state to second-guess a state-licensed physician advising caution in vaccination for a vulnerable child is a sad commentary on the state of medical freedom in New York.”

Attorney Sujata Gibson, who represented Sarah, said:

“The Oceanside ruling clarifies that the ADA protects children who need medical exemptions from one or more mandated vaccines.

“I believe school districts want to do the right thing. They are not qualified or authorized to make medical decisions for students and should cease this unlawful practice before more children are harmed or, God forbid, killed.”

‘Misleading’ legal advice encourages New York schools to ignore Oceanside ruling

According to the letter, New York law firm Ingerman Smith, which represents several New York school districts, circulated “misleading’ legal advice to New York state school districts on Aug. 20, advising them that they can ignore the Oceanside ruling and continue denying medical exemptions.

The Ingerman Smith memorandum states, in part:

“[S]hould a school district receive a medical exemption request that is . . . not certifying that there is a contraindication or precaution as listed on the ACIP [Advisory Committee on Immunization Practices] guidelines . . . said request should be denied.”

CHD said the advice “is false and dangerously misleading, and any district relying on it risks serious legal and financial exposure.”

ACIP advises the Centers for Disease Control and Prevention on vaccine policy. New York uses a narrow list of “contraindications” or precautions in the ACIP guidelines to determine what may cause vaccine-related harm. This leads to a widespread denial of exemptions.

Michael Kane, CHD’s director of advocacy and founder of Teachers for Choice, said this standard is inadequate:

“ACIP guidance doesn’t even cover the majority of adverse reactions listed on the vaccine insert itself, nor does it allow medical professionals to do their jobs properly and thoroughly.

“The child’s attending doctor should have the final say, not nameless bureaucrats and doctors who never meet these children.”

In 2019, New York enacted regulations allowing schools to reject valid medical exemptions. Since then, the state has cracked down on medical exemptions, including revoking previously approved exemptions.

New York’s Department of Health “encouraged school district administrators with no medical training to reject medical determinations made by treating physicians,” Gibson said. She added:

“As a result, hundreds if not thousands of medically fragile children have been forced to choose between their health and their education. Many children have been severely injured after the schools forced them to get vaccinated against medical advice. Countless more have been deprived of an education and vital special education services.”

CHD’s letter states that New York law advises certifying physicians to make determinations consistent with “ACIP guidance or other nationally recognized evidence-based standard of care,” including vaccine manufacturers’ package inserts.

The letter also points out that the Ingerman Smith memorandum ignores several recent federal court rulings:

• Miller v. McDonald: In March, the U.S. Court of Appeals for the 2nd Circuit held that New York law does not give school officials “improper discretion to evaluate the reasons given for a requested medical exemption” or to “‘approve or deny exemptions on a case-by-case basis’ for any reason.”
• Goe v. Zucker: In 2022, the 2nd Circuit held that physicians can base their determinations regarding whether to grant a medical exemption not just on ACIP criteria, but other sources, including vaccine manufacturers’ package inserts.
• A.A.C. v. Starpoint Central School District: In April, the U.S. District Court for the Western District of New York granted the plaintiffs a preliminary injunction, finding that the district’s medical director “improperly second-guessed” a medical exemption granted by a physician, exceeding “the bounds of his statutory authority.”

Speaking today on CHD.TV’s “Good Morning CHD,” health freedom activist Rita Palma, founder of My Kids, My Choice, said, “Your treating doctor is 100% empowered to say whether or not this shot may be detrimental to the health of the child.”

The physician “has to give a reason, but it doesn’t have to be a dissertation on this child’s medical profile,” Palma said.

Experts have said denying medical exemptions and barring students from the classroom and their peers places those students at a higher risk of mental health challenges, including a higher risk of suicide and self-harm.

Holland said the Ingerman Smith memorandum “effectively tells school districts that they can continue to flout New York state law.”

“We have served notice that we will consider further overriding of doctors’ medical exemptions unlawful discrimination and that we may take legal action, including a potential class action,” Holland said.

Following court ruling, Sarah resumed classes today

Today, Sarah returned to school for the first time after the Oceanside ruling — an event covered on CHD.TV’s “Good Morning CHD.”

Speaking on “Good Morning CHD,” Kane said Sarah “didn’t want to make a big fuss about it. She just wanted to cross that threshold and get into her school and be normal and get an education like everybody else.”

Kane told The Defender that CHD is planning other legal actions to protect medical exemptions in New York.

Holland said, “I am proud that CHD is standing shoulder to shoulder with vulnerable children and their families in New York, ensuring that these children with a medical disability may receive the education in school to which they are entitled under law.”

Legislative efforts to protect medical exemptions are also underway in New York. The “Education for All Act” (Senate Bill S686 and Assembly Bill 3860) pending before the New York State Legislature directs all school districts to accept a credible medical exemption form when completed by a licensed medical professional.

Related articles in The Defender

• Judge Rules in Favor of Teen in Medical Exemption Lawsuit Funded by Children’s Health Defense
• Mom, Teen Sue School That Refused to Grant Hep B Vaccine Medical Exemption
• New York’s Attack on Medical Exemptions Gives School Officials Power to Override Doctors on Vaccines
• New York’s Strict Medical Exemptions Not Going Away After U.S. Supreme Court Refuses to Hear Appeal
• Barring Teens With Medical Exemptions From Classroom Increases Suicide Risk