Petitioners appealed a Board of Education's determination that their child, a high school student, was "not entitled to a medical exemption" from the immunization requirements of Public Health Law §2164.* The appeal also named the high school principal and a school nurse as “Individual Respondents”. The Commissioner dismissed Petitioners' appeals "for improper service."
The Commissioner's decision notes that 8 NYCRR 275.8 [a] of the Regulations of the Commissioner of Education requires that such petitions be personally served upon each named respondent. Further, if a school district is named as a respondent, service upon the school district is to be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service of an appeal to the Commissioner of Education.
Although Petitioners’ affidavits of service indicated that they had served the Individual Respondents, the Individual Respondents denied this allegation, stating that they had received the petitions "from district employees who are not authorized to accept service on their behalf."
Citing Appeal of Barrientos, 58 Ed Dept Rep, Decision of the Commissioner No. 17,450 and other Decisions of the Commissioner of Education and noting that Petitioners "did not submit a reply or otherwise respond" to the Individual Respondents’ claims of improper service, the Commissioner opined that "on this record" she could not conclude that Petitioners served a copy of the petition on any of the named Individual Respondents as required by §275.8 (a) of the Commissioner’s regulations and dismissed their appeals.
* Public Health Law §2164 address immunization against poliomyelitis, mumps, measles, diphtheria, rubella, varicella, Haemophilus influenzae type b (Hib), pertussis, tetanus, pneumococcal disease, meningococcal disease, and hepatitis B.
Click HERE to access the Commissioner's decision posted on the Internet.