New York City flu immunization requirements – court ruling

On December 11, 2013 the New York City Board of Health adopted a rule – which we will refer to as New York City flu immunization requirements – establishing that children aged 6-59 months attending full time daycares that meet certain criteria to receive an annual influenza vaccine (see Resolution NY Influenza vaccine rule, pdf).

On December 16, 2015 Justice Manuel J. Mendez from New York’s Supreme Court (which, in spite of the name, is not the highest court in New York state) granted certain petitioners’ motion to declare the rule “invalid and unlawful” (see NY mandate decision, pdf). Note that although there is a higher instance, in this case, I doubt the decision – which is well reasoned and appropriate, in my view – would be overturned.

This post explains what the court decided and what it means. 

New York City flu immunization requirements – decision


Petitioners are parents of children of the relevant age in New York City, and claim harm because if the amendments are enforced they will not be sending their children to daycare or preschool. This would pose difficulties for them and for the children so excluded.

Petitioners made several claims, but since the court accepted their first claim – that New York City did not have authority to make the rule – it did not address the petitioners’ other claims.

The New York State Public Health Law authorizes the Commissioner of the State’s Department of Health (not the City’s) to do things related to vaccines. Section 216 (1)(l) allows the Commissioner to operate immunization programs and pass regulations for them, and section 613, in the chapter focusing on aid to municipalities, also allows the Commissioner to create programs for that purpose.

However, both provisions contain the exact same language limiting the State Commissioner’s authority, saying nothing in the provisions “shall authorize mandatory immunization of adults or children, except as provided in sections twenty-one hundred sixty-four and twenty-one hundred sixty-five of this chapter.”

The first provision – 2164 – imposes school immunization requirements, listing the required vaccines, which do not include influenza, and section 2165 does the same for college students. Neither provision allows the State Commissioner to add vaccines.

In other words, as the Court pointed out, the legislature seems to have gone to some effort to make it clear that the authority to add vaccines is not granted to the state’s executive branch – the branch that otherwise has direct authority to implement immunization programs. By implication, the legislature seems to be strongly stating that the power to add vaccines belongs to it.

While it does not expressly mention municipalities, it is a fair – and powerful  – interpretation that the legislature did not give any other actor the power to add required vaccines. That power, in New York, belongs to the democratically-elected legislature alone.

Therefore, by adding the requirement of an influenza vaccine for daycare children, New York City’s Board of Health overstepped its powers. The provisions that allow it to enact regulations (sections 556 and 558 of the City Charter) don’t give it authority to create new laws or contradict the legislature. Between city and state law, the state law wins. This is not new or surprising: state law is generally considered a higher authority than local law. Even for an important city like New York City.

The Justice addressed two arguments raised by New York City in response. First, that an existing provision of the New York City Administrative Code, Section 17-109, enacted by the state legislature, gives the city authority to add provisions to prevent the spread of communicable diseases.

The Court rejected this argument because this section was older than the school immunization requirements – in fact, it was 150 years old – and under usual cannons of interpretation of statutes, that older and general law is superseded – overcome – by the newer and more specific law about school immunization requirements. This, too, is a reasonable step: in interpreting conflicting statutes it is, indeed, the norm that new statutes overcome older ones (because we assume the legislature knew of the old statute and intended to limit it) and specific statutes overcome general ones.

The respondent also claimed that the petition was filed outside the time of limitations. The Court, however, rejected that because if the rule was void, it simply can’t be valid or applied – and the passage of time cannot correct that. And the Court concluded the rule was void because the City did not have the authority to enact it.

What it means


The decision basically says that when the legislature went out of its way to make it clear that immunization requirements are to be set by it and it alone New York City cannot add immunization requirements on its own authority.

The decision does not even clearly say that NYC would be barred from acting if the law was silent on this issue.

One area where the decision is unclear is what rights, specifically, it found were at risk here (having some rights affected is required to obtain an injunction). The rights of the parents to send children to school without the influenza vaccine? School immunization requirements generally were not touched by this decision; in fact, it highlighted that they are set by sections 2164-2165 of the Public Health Law, implying that as long as they are in the law, they are fine.

So the decision cannot be read to say that parents have a right to send unvaccinated children to school. But it can be read to say that parents have a right that additional vaccines be examined by the more deliberative and thorough process of legislation, rather than only by an administrative decision.

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What the decision does not mean


    1. The decision does not mean this is bad policy. The Court expressly avoids doing a balancing test. In fact, the Court says:“This is not a situation where it is ‘difficult-to-demarcate [sic] [the] line between administrative rulemaking and legislative policymaking,’ thereby requiring a ‘Boreali’ analysis.”This is a reference to a balancing test, examining the soundness of a policy. The Court isn’t examining the policy here at all. It is not addressing whether an influenza requirement is appropriate – it’s just pointing out that the power to add it belongs to the legislature, not to New York City’s Board. It’s an issue of the rules of the game, not of the content of the policy.
    2. The decision does not imply the New York City Board of Health should not act to increase immunizations against influenza in many other ways. Indeed, in pointing out that striking down the mandate does not impose an unusual burden on the City, the Court reminds us that “Respondents were already required by State Law to promote, educate, and administer – when requested – the flu shot.”The Court in no way casts doubt on the desirability of these provisions. There’s no finding in the case that preventing flu is undesirable or unimportant. Again, it’s a rules-of-the-game decision: if you want to do this, it needs to go through the legislature.
    3. The decision does not touch the constitutionality of immunization requirements. If anything it reaffirms the ability of the legislature to enact them. As explained, it refers to the relevant code sections creating the mandates with no criticism or concern.
    4. In that, it is well within our traditional immunization jurisprudence, which has always been enabling: it’s up to state legislatures whether, and to what extent, to require immunizations for school. This decision does not limit that in any way, fitting comfortably within a tradition of upholding legislative school immunization requirements – as every court, state or federal, ruling on this issue has done so far.
    5. The decision does not address whether administrative agencies can add procedural requirements to immunization requirements. It is very specific: it simply says that in New York State’s legal environment, the power to add vaccines was kept by the legislature for itself.
    6. The decision does not tell us what the balance of power would be in any other state.  It relies on the limits expressly set for this issue by the New York State Legislature, and it cannot set a precedent for anyone else.

What about an influenza requirement in New York? The City’s goal of protecting its youngest children from influenza – from getting it themselves and transmitting it to others, including those most vulnerable to its risks – is laudable. Influenza is dangerous. But for good reason, the power of policy making bodies is limited in our system.

The power of state government to limit local government is one such limit, and an important one. Allowing municipalities to slip their controls because we like the result in one case is problematic. Public policy makers need to work within the rules of the game, and those rules dictate that if the legislature expressly reserved a power for itself, that needs to be honored.

If New York wants an influenza mandate, under the current framework it would have to be passed by the state legislature, or the legislature would have to formally authorize New York City to add vaccines to the requirements.

Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law. 

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.