On Thursday, June 28, 2018, New York State’s highest court, the Court of Appeals, unanimously reinstated New York City’s flu vaccine mandate for certain daycares, which was previously struck down by two lower courts on different grounds. The decision, Garcia v. New York City Department of Health and Mental Hygiene, is mostly about a specific legal issue – the line between when agencies act independently, and when they need legislative direction and direct authority to act.
At its core, it is a question about the limits of bureaucratic power. However, the decision also makes it clear that the New York City Board of Health has extensive power to establish a flu vaccine mandate (and for other vaccines) and to act to prevent infectious diseases. In that sense, it’s good news, upholding the ability of the Board to protect public health.
Flu vaccine mandate – case history and procedure
In December 2013, the New York City Board of Heath changed the rules governing which vaccines children who attend childcare programs under its jurisdiction must have. The Board required that: “all children between the ages of 6 months and 59 months who attend child care or school-based programs under the Department’s jurisdiction must also receive annual influenza vaccinations” (quoted from the decision). This new flu vaccine mandate was subject to New York’s exemptions – New York State has medical and religious exemptions available.
The Court of Appeals’ decision explained:
The Board’s amendments authorized officials in charge of child care and school programs to deny admission to any child who fails to provide proof of influenza vaccination and established an appeals process for those denied admission on that ground (see id. §§ 43.17 [a] [2] [B] [ii]; 47.25 [a] [2] [B] [ii]). Under the new flu vaccine rules, a child care provider or school “that fails to maintain documentation showing that each child in attendance has either received each vaccination required by this subdivision or is exempt from such a requirement . . . will be subject to fines” for each unvaccinated child permitted entry.
A group of five plaintiffs, represented by New York lawyer Aaron Siri (who has participated in other cases attacking vaccines), challenged the new city rules. The plaintiffs won at the Supreme Court – which in New York’s system is the trial court– on the grounds that the New York State code provisions imposing immunization requirements prevent the Board from adding to them. The Board appealed to the state court called the Appellate Division. The Appellate Division also struck down the mandate, but on a different ground: it found that the Board did have authority to require additional immunizations, but that it overstepped its powers, stepping into the legislative realm. I explained and criticized that decision here:
The Board appealed to the Court of Appeals, which reversed and found the rules to be well within the Board’s authority. (While in most states the Supreme Court is the highest court, in New York, the Court of Appeals is the final and highest court, for historical reasons.)
So its decision, in this case, is the final word. Because the claims here are completely grounded in state law, as will become clear, there should not be an appeal to the U.S. Supreme Court: A state’s highest court is the final authority on interpreting its laws and the state constitution, absent a separate federal constitutional or legal claim. Since such a claim was not part of the previous proceedings, it’s too late to raise it now in this case.
The flu vaccine mandate decision
The Court of Appeals’ flu vaccine mandate decision addressed two issues. First, whether the new rules violated the separation of powers and exceeded the Board’s authority. Second, echoing the argument that won in the trial court’s initial decision, that the New York statute on required immunizations preempts the new rules – in other words since the state legislature has spoken, the Board had no authority to add other required vaccines. The High Court rejected both arguments. This section will examine each argument in turn and then address, as a separate issue, what the decision teaches us about the power of the Board to require vaccines.
Separation of Powers
The question in this issue is whether the Board stepped into the legislative domain. In the background is the fact that New York courts have created a robust jurisprudence limiting the ability of agencies to act without clear legislative authority. The intellectual foundation for this is the democratic theory – the democratically elected legislature should set policies and decide between competing interests and values. Agencies can implement legislative policy but are not empowered to make policy. The problem is that the line between policymaking and implementation is very hard to draw. It is a source of many debates in public administration. It is, in fact, not clear that it can be drawn with precision. It reality, modern agencies have substantial discretion to make decisions that, at the very least, affect many interests and do lead to winners and losers.
The New York Court of Appeals acknowledged the difficulty of drawing this line in its decision. The standard New York uses is the Boreali standard, set in 1987, in Boreali v Axelrod (71 NY2d 1 [1987]). Under Boreali, courts look at four factors as relevant to determining if an agency overstepped into the legislative sphere. The Court of Appeals summarized them thus –
whether (1) the regulatory agency “‘balanc[ed] costs and benefits according to preexisting guidelines,’ or instead made ‘value judgments entail[ing] difficult and complex choices between broad policy goals to resolve social problems’” (Matter of Acevedo, 29 NY3d at 222-223, quoting Greater N.Y. Taxi Assn., 25 NY3d at 610); (2) the agency “merely filled in details of a broad policy or if it ‘wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance’” (Matter of NYC C.L.A.S.H., 27 NY3d at 182, quoting Greater N.Y. Taxi Assn., 25 NY3d at 611); (3) the legislature had unsuccessfully attempted to enact laws pertaining to the issue (see Boreali, 71 NY2d at 13); and (4) the agency used special technical expertise in the applicable field (see id. at 13-14).
These are not conditions that all need to be met, but matters to consider in assessing an agency’s action.
The problem for the Board – and what likely led the Appellate Division to find against it, a decision I criticized – was that in a previous case, Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health and Mental Hygiene, the same court used the Boreali factors to strike down the city’s “soda cap,” a rule limiting the size of the portions of sugary drinks restaurants may serve. In that case, the court appeared to give the Boreali factors a pretty broad interpretation.
But in Garcia – the influenza vaccine requirement – the high court found that the Board’s decision should stand under Boreali. The starting point for the discussion was that the Board has to act under delegated power. In this case, the Administrative Code, Section 17-109 delegates to the Board clear powers to adopt measures related to vaccination. The question was whether the flu vaccine mandates, specifically, overstepped under Boreali. The Court of Appeals concluded it does not, looking at the factors.
1. Did the agency balance costs and benefits according to preexisting guidelines (which is okay), or did it make value choices between policy goals, which is not? In Matter of New York Statewide Coalition – the Soda Cap case – the Court found that the Board was asked to balance special competing interests, and that’s the legislature’s job. In Garcia, the same court found that the situation here was different:
the legislature chose the “end” of public health and the “means” to promote that end by empowering the Board to “add necessary additional provisions to the health code in order to most effectively prevent the spread of communicable diseases,” as well as to “take measures, and supply agents and offer inducements and facilities for general and gratuitous vaccination” (Administrative Code § 17-109 [a], [b]). In adopting the flu vaccine rules, the Board determined, in accordance with the legislature’s mandates, which vaccines should be required for children attending certain daycare programs, as a matter of public health.
In other words, the legislature has set the goals, and the general type of means, and what the Board was doing was deciding how to carry those out directives. The goal is “increased public safety and health for the citizenry by reducing the prevalence and spread of a contagious infectious disease within a particularly vulnerable population,” and the choices the Board made while crafting the rules – the fines and the scope – were within implementation powers, and did not amount to policymaking (among other things, because they were not based on considerations of special interests).
The Court of Appeals found that this factor, therefore, supports upholding the rule.
2. Did the agency fill in details or create its own set of rules on a clean slate? The Court of Appeals found that the Board did not create rules from whole cloth. The legislature expressly gave the Board the power to regulate for public health, and to regulate vaccination requirements specifically, and has reaffirmed that power over the years. The Board has initiated various mandatory vaccination programs since the 19th century, beyond those required by the legislature, and this long history supports the idea that the legislature approves of the Board’s ability to do so. The Board is clearly working within a delegation of power to require vaccines.
The High Court found that this factor too supports upholding the rule.
3. Did the legislature try unsuccessfully to enact laws in this area? The high court found that there had been no clear effort by the legislature to address this specific issue – whether to require that children in daycare programs under the Board’s jurisdiction get influenza mandates. The legislature’s statutes encouraging influenza vaccination without mandating it is not equivalent to legislative inability to reach an agreement over a contentious issue – it’s tangential to this.
The Court found this factor was neutral – it does not work against the rule, even if it does not support it.
4. Did the Agency use Special Expertise or Competence to Develop the Regulation? The Board clearly drew on its health expertise and competence to decide the rule was needed.
The Court ruled that this factor, too, does not go against the Board.
Because two factors supported the rule and two did not support striking it down, the rule could stand. In fact, the Court said that: “the Board’s adoption of the flu vaccine rules fits squarely within its regulatory authority and does not constitute impermissible policymaking.”
Preemption and legal Interpretation of flu vaccine mandate
The argument here was that because the state legislature gave the state Department of Health the power to create immunization program, the City – and the Board – cannot act, because state powers trump local powers. The plaintiffs especially emphasized the part of the Public Health Law that stated that “[n]othing in this paragraph shall authorize mandatory immunization of adults or children, except as provided in sections [2164] and [2165].” These are the sections that set up mandatory immunization requirements in the state’s schools.
The Court, in interpreting the law, found that the list of vaccines required for school is not exclusive and that there is no barrier to local authorities which have the authority to regulate for public health to expand it. The Court emphasized the history of vaccination programs run by the Board as evidence of the legislature’s acknowledgment of the Board’s power to do that. The sections of the Public Health Law on encouraging a flu vaccine mandate said the Court, also limit only the authority of the State Health Department – not the Board.
Nor has the state intended to reserve to itself alone the power to require vaccines – the statutes reflect acknowledgement that municipalities play a role. The Court said “It is not unusual for the State to set the floor for public health regulations while permitting localities to adopt stricter measures,” and found that the legislature intended the Board to have authority to require vaccination.
The Court on the Board’s authority on flu vaccine mandate
The Court emphasized that the Board has been delegated broad authority to prevent diseases, including through vaccination programs, and including through requiring vaccines. It provides the Board wide latitude to act for the protection of New York City’s children.
This decision gives New York City’s Board of Health extensive powers to regulate in the public health. And it reinstates a flu vaccine mandate for young children after a hard, brutal flu season that killed children in New York City. Hopefully, it can help reduce such deaths and harms to children – and those they may infect – going forward.
Garcia New York City Flu Mandate Court of Appeals Ruling
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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.
