Baby was receiving his scheduled vaccine injection in his right

Childhood Flu Vaccination and Home Rule in the Big Apple

On June 28, the State of New York Court of Appeals upheld a New York City Board of Health requirement that children between the ages of 6 months and 5 years old attending city-regulated child care or school-based programs receive flu vaccinations.

While New York City is no stranger to progressive public health initiatives, this ruling in particular is significant on at least two accounts. First, it strengthens New York City’s ability to confer the public health benefits of flu vaccination to a wider segment of the adolescent population, consistent with current recommendations. Second, it stands as a reminder of the important role that local health authorities, like boards of health, can play in improving population health, if granted sufficient authority under state law.

The dispute

In late 2013, the board amended existing early childhood vaccination requirements for attendance at various child care and educational institutions to include vaccination against the flu. The law already required vaccinations against 11 other diseases, such as measles, mumps, rubella, pertussis, and pneumococcal disease. While the amended requirements maintained exceptions based on medical need and religious belief, they also: 1) authorized officials to deny admission to any child without proof of receiving the flu vaccine: 2) established an appeals process for children who have been denied admission; and 3) subjected child care providers or schools to fines for not maintaining documentation of flu vaccination status.

The scope of the board’s authority occupied the central issue in the case. In short, had the board overstepped its delegated authority under state law by amending the vaccination requirements? New York state law delegates broad authority to the board, so much so that it encompasses areas under which the New York City Department of Health and Mental Hygiene has broad authority to regulate, including with regard to vaccination and implementing changes to reduce the spread of communicable diseases.

The court relied on Boreali v. Axelrod, a notable 1987 New York state decision on delegated authority, to find that the board had not impermissibly crossed the line from mere exercise of its delegated authority to an act otherwise reserved for the state legislature. As the court wrote, “[p]lainly, this is a legislative delegation of authority to adopt vaccination measures.”

The public health need

The benefits of the flu vaccine, especially for children, are unequivocal. According to the Centers for Disease Control and Prevention (CDC), the recent flu season surpassed prior records for the highest number of flu-related deaths in children reported during a single flu season, where approximately 80 percent of these deaths occurred in children who had not received a flu vaccine. What is more, as the CDC notes, children are at higher risk for serious flu-related complications, especially those under age 5. As the Advisory Committee on Immunization Practices recommends, children between the ages of 6 months and 5 years old should receive the flu vaccine, consistent with the age parameters of the amendments that the board made to the existing regulations.

Home rule

While states enjoy broad powers to protect the health, safety, welfare, and morals of their citizens, state law cabins the extent to which, if at all, local authorities (such as counties and cities) may enjoy similarly broad powers. So-called home rule describes such powers and, more specifically, how far the regulatory authority of a local governmental entity stretches relative to state-level authorities. Equally, a board of health enjoys the powers specifically delegated to it under state law.

Under New York state law, the board clearly enjoys broad powers, particularly regarding vaccinations. Other states and boards of health differ.

According to the National Association of City & County Health Officials, only 77 percent of local health departments have a local board of health. Of this segment, 84 percent have at least some role in adopting public health regulations, with only 57 percent having the final authority to do so. In short, while local health authorities like boards of health are well positioned to understand and respond to the specific needs of the communities that they serve, there is wide variation in their use and the extent of their delegated authority across the states.

Public health governance structures are complex, spanning all levels of government and often involving shared authority over specific domains. The court’s decision is a welcome reminder that this complexity can be a valuable tool for advancing population health.

Nicholas J. Diamond

Nicholas J. Diamond

Nicholas J. Diamond, JD, LLM, MBe is an advisor and legal academic. In his role at Avalere, an advisory firm in Washington, DC, he provides strategic counsel to biopharmaceutical companies on public policy issues. In prior roles, he led global market strategy for the healthcare and life sciences sectors at a Silicon Valley technology company, as well as advised the U.S. government on public policy issues during implementation of the Affordable Care Act. Nick concurrently holds part-time faculty appointments at Georgetown Law and George Washington, as well as (non-faculty) academic affiliations at the Perelman School of Medicine at the University of Pennsylvania. He is also a PhD candidate in public international law at the Grotius Centre for International Legal Studies at Leiden Law School, where he is writing on the intersection of human rights law and international investment law and arbitration. Nick’s work has appeared in law reviews, peer-reviewed journals, and popular media outlets. He has lectured in various academic and industry fora, as well as appeared on U.S. news programs as an expert in public health law.

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