By Dorit Reiss
New York’s Court of Appeals reversed an Appellate Division decision and reinstated New York City’s influenza mandate for city daycares in Garcia v. New York City Department of Health and Mental Hygiene in June. Applying the same criteria the court used in 2014 to overturn the city’s controversial Soda Cap, the court found that the rules are well within the Board’s authority.
We can suspect that the recent influenza season influenced the decision, but it was also based on a more explicit delegation of authority, and a history of vaccination programs by the Board.
Also, it’s likely good news for at least some of New York’s youngest, who will be better protected from a dangerous disease, and for the public.
In December 2013, the New York City Board of Health passed a rule requiring that children 6 months to 5 years get an annual flu vaccine to be allowed to attend daycares under city jurisdiction (the city also has daycares regulated by the state). Parents who did not want to vaccinate could try to get one of the two exemptions allowed in New York state: a medical exemption or a religious one. But if they didn’t, they would have to either vaccinate their children or find other arrangements for them.
Unsurprisingly, the requirement generated opposition — and not just from people who were already anti-vaccine. First, some parents did not like more mandates on principle. Second, the influenza vaccine is sometimes looked at skeptically even by people who are not anti-vaccine, whether because they do not realize how serious influenza can be, or because the vaccine is less effective than other vaccines (because of the nature of the influenza virus, it is hard to create an effective vaccine against it).
However, the flu vaccine is more effective in children than in other groups. It also substantially reduces child mortality and hospitalizations from influenza. Vaccinating children also has the advantage of protecting others by reducing influenza in the community. The Board’s requirement was founded on data showing that vaccinating preschoolers would help prevent diseases and deaths.
A group of five plaintiffs challenged the Board’s rule. This group won in the Supreme Court – the first instance that looked at the case (in New York, the Supreme Court is a trial court, not the highest court in the land; the Court of Appeals is the highest court. The reason is historical).
In that case, a judge found that New York state’s school immunization laws preempt the Board from acting at all. The Board appealed to the Appellate Division, and lost there too, but on other grounds.
In a problematic decision, the Appellate Division applied the so-called “Boreali Factors” to strike down the mandate. In 1987, Boreali v. Axelrod suggested a set of factors to assess whether an agency violated separation of powers and overstepped into the legislative realm.
In 2014, the Court of Appeals used these same Boreali Factors, in New York Statewide Coalition of Hispanic Chambers of Commerce, to strike down another controversial city rule – a rule capping the portions of sugary drinks restaurants can serve (for a more detailed discussion of that rule, see here). The Appellate Division, with a problematic application of Boreali, struck down the influenza mandate.
The Court of Appeals:
The highest court then reinstated the mandate, finding, “the Board’s adoption of the flu vaccine rules fits squarely within its regulatory authority and does not constitute impermissible policymaking.” The differences the court emphasized between this case and the Soda Cap appeared to be the nature of rulemaking and legislative authority.
First, in the Soda Cap case, the court appeared to read the situation as the result of give and take between the city’s public health goals and the need to protect special interests, and a balance of these interests, which the court saw as more appropriately done by the legislature. Here, there was no such effort. The goal of the mandated flu vaccine was “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 there was no similar compromise with an industry that could suffer from the rule.
While this is a real difference, there are certainly other compromises made in this rule, for example, imposing fines rather than delicensing non-complying daycares, so this line is not particularly clear.
Second, the Court – correctly, in my view — saw the legislative mandate here as clearer. The Board was clearly empowered both to prevent diseases and to do so by vaccination. In fact, it has required vaccines beyond state requirements in the past, and the legislature did not interfere or oppose. The Soda Cap was new, and without similar clear authority.
While it’s tempting to see this decision as stepping back from the 1987 New York Statewide Coalition case, it’s not clear that it empowers New York City’s health agencies to act broadly in areas other than vaccine mandates. The decision emphasized the long history of requiring vaccines as a way to control diseases, suggesting a narrow exception rather than a relaxing of its scrutiny of public health measures.
Many public health measures can limit individual freedom to some degree. An influenza mandate is also not easy to enforce (because it’s annual) so most states don’t adopt one. The question is always, what is on the other side?
In this case, the 2017-2018 season was a grim warning of what influenza can do generally, and what it can do to children, including the 172 children who died, about 80% of them unvaccinated. Five children died in New York City. More were hospitalized. The Board decided to impose a mandate to protect young children and those around them.
It’s well within the authority of an agency charged with preventing diseases through vaccination, a potential life saver, and it’s encouraging to see the highest court in the state uphold the Board’s authority in this.