Magdalena Garcia,, et al., Respondents,v.New York City Department of Health and Mental Hygiene, et al., Appellants.BriefN.Y.April 26, 2018 Reproduced on Recycled Paper APL-2017-00023 To be argued by: RICHARD DEARING 15 minutes requested Court of Appeals State of New York MAGDALENA GARCIA, individually and on behalf of her minor child PS, CLEMENCE RASIGNI, individually and on behalf of her minor child NR, LYNN ROSENGER, individually and on behalf of her minor children MR and RR, MICHELLE CARROLL, individually and on behalf of her minor child EP, and GABRIELLE JAKOB, individually and on behalf of her minor children AG and DG, Plaintiffs-Petitioners/Respondents, against THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE; THE NEW YORK CITY BOARD OF HEALTH; and DR. MARY TRAVIS BASSETT in her Official Capacity as Commissioner of the New York City Department of Health and Mental Hygiene, Defendants-Respondents/Appellants. REPLY BRIEF RICHARD DEARING DEVIN SLACK BENJAMIN WELIKSON of Counsel October 19, 2017 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Appellants 100 Church Street New York, New York 10007 Tel: 212-356-0823 or -0817 Fax: 212-356-2509 bwelikso@law.nyc.gov TABLE OF CONTENTS Page i TABLE OF AUTHORITIES ....................................................... iii PRELIMINARY STATEMENT ................................................... 1 ARGUMENT ............................................................................... 2 POINT I ....................................................................................... 2 BECAUSE THE BOARD’S RULE WAS MADE UNDER A VACCINATION-SPECIFIC DELEGATION, IT DOES NOT IMPLICATE BOREALI AT ALL .............. 2 POINT II ...................................................................................... 5 RESORT TO BOREALI’S COALESCING CIRCUMSTANCES CONFIRMS THAT THE RULE DOES NOT VIOLATE SEPARATION OF POWERS ....... 5 A. The mere fact that the Board’s rule has implications for individuals is no basis for second-guessing the Legislature’s delegation. ............................................... 6 B. Plaintiffs mistake reasonable regulatory restraint for executive overreach. ................................................ 9 C. The Legislature has spoken in favor of the flu vaccine, and certainly has not spoken against city- specific requirements. ................................................. 12 POINT III .................................................................................. 15 PLAINTIFFS HAVE NOT IDENTIFIED A CLEAR LEGISLATIVE INTENT TO RESCIND THE BOARD’S AUTHORITY .................................................................... 15 TABLE OF CONTENTS (cont’d) Page ii A. The Legislature preserved, rather than displaced, the Board’s authority when it enacted Public Health Law § 2164. ................................................................. 17 B. The Legislature did not abrogate the Board’s power by amending its State aid framework. ....................... 21 CONCLUSION .......................................................................... 28 CERTIFICATE OF COMPLIANCE .......................................... 29 TABLE OF AUTHORITIES Page(s) iii Cases Matter of Acevedo v. New York State Dep’t of Motor Vehicles, 29 N.Y.3d 202 (2017) ................................................................. 12 Boreali v. Axelrod, 71 N.Y.2d 1 (1987) ............................................................. passim Appeal of C.T., 56 Ed. Dep’t (Decision No. 16,964) ............................................ 21 Matter of Consol. Edison Co. v. Dep’t of Envtl. Conservation, 71 N.Y.2d 186 (1988) ......................................................... 3, 4, 15 Greater N.Y. Taxi Ass’n v. New York City Taxi & Limousine Comm’n, 25 N.Y.3d 600 (2015) ................................................................... 3 Jancyn Mfg. Corp. v. County of Suffolk, 71 N.Y.2d 91 (1987) ....................................................... 16, 18, 20 Matter Citizens for an Orderly Energy Policy, Inv. Cuomo, 78 N.Y.2d 398 (1991) ...................................................... 4 Matter of New York Statewide Coal. of Hispanic Chambers of Commerce v. New York City Dep’t of Health & Mental Hygiene, 23 N.Y.3d 681 (2014) ....................................................... 4, 6, 7, 8 Matter of Nicholas v. Kahn, 47 N.Y.2d 24 (1979) ..................................................................... 4 Matter of NYC C.L.A.S.H. v. New York State Office of Parks, Recreation, & Historic Pres., 27 N.Y.3d 174 (2016) ............................................................. 6, 14 TABLE OF AUTHORITIES (cont’d) Page(s) iv Appeal of O.M & R.M., 52 Ed. Dep’t (Decision No. 16,414) ............................................ 21 Paynter v. State of New York, 100 N.Y.2d 434 (2003) ............................................................... 19 People v. Judiz, 38 N.Y.2d 529 (1976) ................................................................. 15 Rent Stabilization Ass’n of New York City, Inc. v. Higgins, 83 N.Y.2d 156 (1993) ........................................................... 10, 18 Appeal of S.B., 48 Ed. Dep’t Rep. 332 (Decision No. 15,875) ............................ 21 Steinmann v. Village of Spring Valley, 261 A.D.2d 548 (2d Dep’t 1999) ................................................. 20 Town of Concord v. Duwe, 4 N.Y.3d 870 (2005) ................................................................... 18 Vator v. Comm’r of Consumer Affairs of City of New York, 83 N.Y.2d 645 (1994) ................................................................. 18 Viemeister v. White, 179 N.Y. 235 (1904) ..................................................................... 7 Laws and Regulations 10 N.Y.C.R.R. § 66-1.1 .................................................................... 19 10 N.Y.C.R.R. § 66-1.3 .................................................................... 21 10 N.Y.C.R.R. § 66-1.5 .................................................................... 21 L. 1966, ch. 994 ............................................................................... 18 TABLE OF AUTHORITIES (cont’d) Page(s) v L. 2004, ch. 207 ........................................................................ 23, 24 L. 2010, ch. 36 ................................................................................ 14 L. 2013, ch. 56 ................................................................................ 25 N.Y.C. Admin Code § 17-109 ............................................ 2, 3, 15, 24 N.Y.C. Charter § 558 ...................................................................... 15 Pub. Health Law § 206 ................................................................... 24 Pub. Health Law § 601 ....................................................... 22, 25, 26 Pub. Health Law § 602 ................................................................... 25 Pub. Health Law § 603 ................................................................... 25 Pub. Health Law § 613 ........................................................... passim Pub. Health Law § 2164 ............................................... 17, 18, 19, 20 Other Authorities 2007-2008 N.Y. Assembly Bill A10942 .......................................... 13 Bill Jacket, L. 1966, ch. 994 ........................................................... 18 Bill Jacket, L. 2004, ch. 207 ........................................................... 23 Bill Jacket, L. 2010, ch. 36 ............................................................. 14 N.Y. Reg., Mar. 18, 2015, at 18, archived at https://perma.cc/M478-V536 ...................................................... 19 New York State Department of Health, Strengthening New York’s Public Health System for the 21st Century, archived at https://perma.cc/T82C-447R .................... 22 TABLE OF AUTHORITIES (cont’d) Page(s) vi New York State Educ. Dep’t, Recommended School District Procedures for Implementing Requests for Religious Exemptions to Immunization (last updated 3/22/2016), archived at https://perma.cc/64PE-YYEA ..................................................... 21 PRELIMINARY STATEMENT Plaintiffs’ brief spends little time defending the First Department’s Boreali analysis—the sole basis for the court’s invalidation of the Board’s flu vaccine rule. Their reluctance is not surprising. After all, the First Department recognized that the Legislature specifically delegated vaccination rulemaking authority to the Board. Far from rescinding that authority, as plaintiffs claim, the Legislature has confirmed it time and again. The First Department questioned only the particular means the Board selected to implement this legislative mandate. As explained in our main brief, by inviting judicial intrusion into an agency’s subsidiary choices when exercising its delegated authority, the court created, rather than solved, a separation of powers problem. 2 ARGUMENT POINT I BECAUSE THE BOARD’S RULE WAS MADE UNDER A VACCINATION- SPECIFIC DELEGATION, IT DOES NOT IMPLICATE BOREALI AT ALL Plaintiffs take a different road to the same offense. Recognizing that the First Department’s decision cannot be defended on its own terms, plaintiffs contend that the court was wrong to conclude that § 17-109 of the Administrative Code provides the Board with the authority to craft vaccine admission requirements for city child care facilities. That is because, according to plaintiffs, the statute is too “broad” and does not specifically identify vaccine admission requirements (Resp. Br. at 34, 50). Their argument is deeply flawed. True, an agency may in rare cases transgress into the legislative domain by wielding a sweeping delegation to break fresh ground on weighty matters of public policy with no legislative guidance. But § 17-109 is the opposite of sweeping: it vests the Board with rulemaking authority in the area of “vaccination” specifically, empowering the Board to add 3 vaccination-related “provisions to the health code … to most effectively prevent the spread of communicable diseases.” Much more than a “general” declaration of legislative policy (which alone would suffice), Greater N.Y. Taxi Ass’n v. New York City Taxi & Limousine Comm’n, 25 N.Y.3d 600, 608 (2015), § 17-109 articulates the overarching means (vaccination) for achieving the Legislature’s stated end (preventing the spread of communicable disease in the city). To demand more from the Legislature to empower a public health agency to adopt effective vaccination measures is to devalue the legislative prerogative in the name of safeguarding it. In plaintiffs’ view, it was not enough for the Legislature to specify that the Board has rulemaking authority in the area of vaccination in particular; it had to particularize that the Board’s authority extends to vaccine admission requirements. Plaintiffs cite no authority for their delegation-only-with-particularity theory, and indeed this Court has rejected it. Nothing about the separation of powers “compel[s] the Legislature to prescribe detailed rules” for every circumstance any agency may confront. 4 Matter of Consol. Edison Co. v. Dep’t of Envtl. Conservation, 71 N.Y.2d 186, 191 (1988) (quotation mark omitted). The very idea of delegation embraces open-endedness: administrative “flexibility” is the purpose, not the problem. Id.; see also Matter Citizens for an Orderly Energy Policy, Inv. Cuomo, 78 N.Y.2d 398, 410 (1991) (agencies do not need “rigid marching orders”); Matter of Nicholas v. Kahn, 47 N.Y.2d 24, 31 (1979) (flexibility is the “very essence” of administrative law). Proving the point, plaintiffs are unable to identify a single case in the Boreali line with a similarly specific delegation so closely tied to the challenged rule. Because there is none. A path- breaking policy prohibiting indoor smoking, or a bold new approach dictating sugary drink portion control, may require scrutiny if resting solely on a sweeping delegation of authority. See Boreali v. Axelrod, 71 N.Y.2d 1, 9 (1987) (“matters affecting … public health”); Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dep’t of Health & Mental Hygiene, 23 N.Y.3d 681, 694 (2014) (“security of life and 5 health”). But here we are talking about the use of a vaccination- specific delegation to enact a vaccine rule. Neither this Court’s precedent nor principles of administrative law contemplate the exacting specificity that plaintiffs demand. And that all but dooms plaintiffs’ case, because they do not genuinely dispute that if the Board’s flu vaccine rule falls within a specific delegation of authority, it does not implicate Boreali in the first place (see Resp. Br. at 43-44). POINT II RESORT TO BOREALI’S COALESCING CIRCUMSTANCES CONFIRMS THAT THE RULE DOES NOT VIOLATE SEPARATION OF POWERS No further analysis is required to conclude that it is plaintiffs’ position, not the Board’s rule, that poses a separation of powers problem. But even if the Board’s specific vaccination authority were absent, and Boreali’s “coalescing circumstances” were appropriately considered, the same result would hold. The Board’s general public health authority under the Charter amply supports the traditional public health measure it adopted here. This is not one of those extreme cases where an agency has 6 usurped the legislative role. Resort to the Boreali framework just confirms what is already clear. A. The mere fact that the Board’s rule has implications for individuals is no basis for second-guessing the Legislature’s delegation. To say that a public health regulation affects individual autonomy is more of a truism than an indictment. Like a wide array of regulations, public health measures may implicate personal autonomy, but that is the nature of public health, where individual choice often runs up “against the damage it does to our neighbors.” Matter of NYC C.L.A.S.H. v. New York State Office of Parks, Recreation, & Historic Pres., 27 N.Y.3d 174, 176 (2016). Yet plaintiffs seem to believe that the unremarkable fact that the Board’s flu vaccine rule affects individual behavior triggers Boreali. Their contention only shows how they have lost perspective on Boreali’s proper role. A flu vaccine admission requirement is not a bold new policy unheard of “in our present time.” Statewide Coalition, 23 N.Y.3d at 699. Not only have vaccination requirements been around for over a century (App. Br. at 6-8), vaccine admission requirements 7 have been adopted by both the Board in New York City and the Legislature statewide for just as long (id. at 8-11). Over a century ago this Court held that, “[i]f vaccination strongly tends to prevent the transmission or spread of [a] disease, it logically follows that children may be refused admission to the public schools until they have been vaccinated.” Viemeister v. White, 179 N.Y. 235, 239 (1904). No matter how deeply felt the objections of a vocal minority, it is hard to conceive of a more traditional public health tool, “widely” accepted and effective against known health risks. Statewide Coalition, 23 N.Y.3d at 699. Plaintiffs have next to nothing to say about this historical backdrop, which confirms that the Board acted within its delegated authority. Far from an “implied exception” to the State’s approach to immunization (Resp. Br. at 37), the Board’s use of its vaccination authority in New York City has been a stepping-stone for that approach. After all, the Legislature has not only acquiesced in the Board’s past vaccination measures, but pointedly praised them (App. Br. at 9-12). 8 Even if this history could be ignored, plaintiffs never explain how their view can be reconciled with Statewide Coalition. The Court “carefully circumscribed” its holding there to preserve the Board’s ability to adopt traditional public health measures under its general public health authority in the City Charter—some, like a ban on tattoos or the fluoridation of the water supply, that plainly touched on personal autonomy. N.Y.3d at 695, 701 (Abdus- Salaam, J., concurring). And the Court did so even though Statewide Coalition did not involve a delegation of authority as precise as the Board’s vaccination-specific authority, which makes it all the more apparent that the Board has not strayed from its designated lane. Plaintiffs may be displeased with these delegations of authority to the Board, but they are free to lobby the Legislature to abrogate them. Despite having numerous opportunities, the Legislature has instead chosen to reconfirm the Board’s authority. That plaintiffs have been unable to persuade the Legislature to change course does not reflect an accountability problem. It shows that plaintiffs’ position is in the minority. 9 B. Plaintiffs mistake reasonable regulatory restraint for executive overreach. Not only do plaintiffs fundamentally misapprehend the flu vaccine rule, their objections betray that they have lost sight of Boreali’s core separation-of-powers purpose. Like the First Department, they take issue with the Board’s measured approach in devising a rule that is reasonable in scope and application. But the point of Boreali is to identify when agencies have gone too far. Boreali, 71 N.Y.2d at 11-12. Positing a separation of powers problem where an agency uses restraint perverts the doctrine. First, plaintiffs contend that the Board’s decision to target the larger child care facilities it has long regulated reflects administrative overreach (Resp. Br. at 46). But plaintiffs do not dispute that, while the Board’s rule may not extend to a number of smaller facilities regulated by the State, it applies to the vast majority of preschool-aged children in the city (R. 84, 140; see also App. Br. at 13). Regardless, whether considered from the perspective of the number of facilities reached or the number of children covered, the key point is that the rule targets the most epidemiologically significant facilities (R. 142-46, 153). The scope 10 of the rule thus reflects the Board’s expertise, not administrative overreach. See Rent Stabilization Ass’n of New York City, Inc. v. Higgins, 83 N.Y.2d 156, 170 (1993) (proper to design rules in light of regulatory expertise). Second, like the First Department, plaintiffs also mistake the rule’s enforcement mechanism as a signal that the Board has gone too far (see Resp. Br. at 47-48). True, the Board could have adopted a strict bar on attendance or a harsher penalty for noncompliance. Setting aside that plaintiffs surely would have faulted a more draconian approach too, the Board simply chose a traditional enforcement mechanism—escalating, mandatory fines—grounded in authority it has long held and exercised, including in the vaccine admission context (see App. Br. at 16-7, 34-35). And that commonplace mechanism worked here—every facility plaintiffs’ children attended abided by the Board’s admission requirement (R. 90, 96-97, 104-05, 108, 111-12). That the Board successfully devised a rule that it could flexibly implement reflects reasoned administrative regulation, not a separation of powers problem. 11 Third, plaintiffs seize on the Board’s passing mention of noncontroversial “economic” and “social” facts in the course of adopting the rule and in this litigation (Resp. Br. at 48)—namely, that the flu, like much communicable disease, has productivity and medical costs and results in missed school days (R. 141). Far from suggesting that the Board impermissibly weighed concerns outside its ken, the Board’s acknowledgment of the flu’s broader economic and societal impacts only underscores that the flu is a public health problem. In any case, plaintiffs make no claim, nor does the record support, that the Board’s passing consideration of these factors shaped the substance of the rule. See Boreali, 71 N.Y.2d at 12. Indeed, these observations align with the rule’s obvious public health concerns. This is not a case where an agency designed a regulation “laden with exceptions” based on special interests that run contrary to its purpose. Id. The challenged rule is a mandatory vaccine admission requirement, targeting epidemiologically significant facilities in the City, which have been traditionally subject to similar requirements because they present 12 a significant risk of spreading communicable disease. The Board’s recognition of the broader ramifications of the flu does not change the fact that its flu vaccine rule is a quintessential public health measure, not an economic one. C. The Legislature has spoken in favor of the flu vaccine, and certainly has not spoken against city-specific requirements. Plaintiffs’ effort to manufacture legislative disapproval of the Board’s provision is similarly flawed. This Court has repeatedly noted the “dubious foundation” that legislative inaction provides for inferring the Legislature’s intent. Matter of Acevedo v. New York State Dep’t of Motor Vehicles, 29 N.Y.3d 202, 225 (2017). And that is especially true when a challenger tries to invoke legislative inaction on statewide bills as a basis for striking down a locality- specific rule. Here, plaintiffs’ entire argument is based on two unconnected state bills: one tangentially related to a flu vaccine admission provision for children and the other reflecting the Legislature’s support for the flu vaccine. Their contentions do not withstand scrutiny. 13 Plaintiffs first rely on a 2008 bill, introduced at the request of the State Department of Health, that proposed a substantial change to compulsory vaccination requirements for children statewide (Resp. Br. at 52-53). The purpose of the bill was to link required child vaccinations to federal standards, by updating all statewide vaccination requirements to conform to the CDC’s recommendations. See 2007-2008 N.Y. Assembly Bill A10942, Statement in Support. The bill hardly shows that the Legislature considered and rejected a flu vaccination requirement. While the flu was among the vaccines recommended by the CDC, the bill was focused on this CDC-centric approach generally—it did not even mention the flu in this context. That the Legislature did not follow through does not indicate any view about flu vaccine admission requirements in particular, much less a city-specific requirement. Plaintiffs also draw the wrong inference from the Legislature’s amendment of Public Health Law § 613 in 2010 to require the State Commissioner of Health to administer educational programs throughout the state to encourage parents 14 to vaccinate their children against the flu (Resp. Br. at 54) (citing L. 2010, ch. 36). Nothing in the bill suggests that the Legislature disapproved of an admission requirement. To the contrary, the sponsors expressed concern about the serious and fatal risks presented by the flu every year,1 and sought to ensure that parents received necessary information about the “importance of influenza immunizations” so that they would vaccinate their children.2 The Legislature, then, has “spoken” about flu vaccination and it is unequivocally in its favor. NYC C.L.A.S.H., 27 N.Y.3d at 182. That plaintiffs go so far as to depict this clear expression of support for the flu vaccine as a silent limitation on the Board’s vaccination authority—which the Legislature was aware of but left untouched (see App. Br. at 10-11)—only underscores the weakness of their position. 1 Assembly Sponsor Mem. in Supp., reprinted in Bill Jacket, L. 2010, ch. 36 at 12, archived at https://perma.cc/2S2V-UZB5. 2 Senate Sponsor Mem. in Supp., reprinted in Bill Jacket, L. 2010, ch. 36 at 6, archived at https://perma.cc/2S2V-UZB5. 15 POINT III PLAINTIFFS HAVE NOT IDENTIFIED A CLEAR LEGISLATIVE INTENT TO RESCIND THE BOARD’S AUTHORITY Plaintiffs do not dispute that the Board’s vaccination authority under § 17-109 of the Administrative Code and § 558 of the Charter derives from state law carrying the same force as anything they cite. They nevertheless insist that preemption, rather than implied repeal, is the appropriate rubric for evaluating whether the Legislature abrogated the Board’s authority. But it makes no sense to ask whether the Legislature has “preempted” itself. Because the flu-vaccine rule falls within the bounds of a state law delegation, the question is not whether there is preemption but whether the Legislature repealed what it conferred. See Consol. Edison Co., 71 N.Y.2d at 195. In any event, whether the analysis is framed as implied repeal or preemption, the burden is much the same: plaintiffs must show that the Legislature unambiguously manifested its intention to upend its express delegation of vaccination authority to the Board. See id.; People v. Judiz, 38 N.Y.2d 529, 532 (1976). 16 And plaintiffs have a particularly tough row to hoe here: not only must they overcome an express delegation, but one that aligns with core police powers traditionally exercised by municipalities alongside the State (see App. Br. at 4-6), and, as noted, the Legislature has not only acquiesced in the Board’s past vaccination measures, but praised them (see id. at 9-12). Given this extensive history, which plaintiffs largely choose to ignore, the Court should look for a crystal clear statement, one that leaves no room for doubt, before concluding that the Legislature intended to upend this longstanding state of affairs. See Jancyn Mfg. Corp. v. County of Suffolk, 71 N.Y.2d 91, 99 (1987). Plaintiffs never come close, pointing to provisions that neither mention the Board or its authority nor include traditional repeal or preemption language. To describe them as oblique tea leaves is to give to them too much credit. They are far from a clear statement of legislative intent to displace the Board. 17 A. The Legislature preserved, rather than displaced, the Board’s authority when it enacted Public Health Law § 2164. Plaintiffs baldly claim that Public Health Law § 2164 sets an exclusive statewide ceiling that precludes local boards of health, and the City Board specifically, from responding to local epidemiological threats. But the statute’s text, structure, and history all contradict plaintiffs’ claim, and it flies in the face of the State’s tradition of local health regulation responding to local needs (see App. Br. at 4-8). Had the Legislature wanted to upend this tradition, it would have said so clearly. It did not. Plaintiffs first argue that § 2164’s definition of “school,” which includes a wide array of educational and child care facilities, indicates that the Legislature intended to preclude local regulation. Plaintiffs never justify their unstated claim that a definitional provision can obliquely abrogate an express delegation of authority. Especially here, where the same definition was adopted when the statute was enacted 1966, at the same time the Legislature recognized the Board’s concurrent authority to adopt similar provisions for city children, citing to the Board’s successful 18 vaccination measures as model (see App. Br. at 10-11). In fact, the Legislature modeled its definition of the term “school” on the Board’s definition of the term “day care service.”3 The Legislature’s contemporaneous understanding of the statute provides compelling evidence of its intent to preserve the Board’s authority. See Vator v. Comm’r of Consumer Affairs of City of New York, 83 N.Y.2d 645, 651 (1994). Had the Legislature wanted to supplant the regulatory authority it explicitly recognized, one would have expected it to do so clearly. See Jancyn Mfg. Corp., 71 N.Y.2d at 99 (1987). Its “silence in this regard” puts to rest plaintiffs’ claim, Town of Concord v. Duwe, 4 N.Y.3d 870, 873-74 (2005), especially since the Legislature subsequently amended § 2164 repeatedly, each time leaving the Board’s authority intact (App. Br. at 10-11). See Rent Stabilization Ass’n of New York City, 83 N.Y.2d at 170. 3 See Assembly Sponsor’s Mem. in Supp. at 4, reprinted in Bill Jacket, L. 1966, ch. 994 at 8 (noting that the Board’s vaccination provision applied to a “day care service,” defined to include any “child care center, day nursery, day care agency, nursery school, [and] kindergarten”); compare with L. 1966, ch. 994 (adopting a “school” vaccination provision defined to include any “child caring center, day nursery, day care agency, nursery school, kindergarten,” elementary, and secondary school). 19 Plaintiffs are on no firmer footing when they suggest that § 2164 imposes a centralized and uniform statewide vaccination regime, a suggestion that runs contrary to the system of localized authority over school administration that is enshrined in the State constitution. See Paynter v. State of New York, 100 N.Y.2d 434, 442 (2003). That system contemplates variation among school districts, not, as plaintiffs contend, a “centralized scheme” (Resp. Br. at 26). There has always been local variation in vaccination requirements, especially for New York City (see App. Br. at 10-12). Indeed, in 2015, the State Department of Health amended 10 N.Y.C.R.R. § 66-1.1, which administers § 2164, explicitly noting that its changes to the regulation did not address any “additional immunizations that may be required … by the New York City Health Code.”4 Thus, the State Legislature, the State Department of Health, and the City Board all agree: § 2164 sets a statewide 4 N.Y. Reg., Mar. 18, 2015, at 18, archived at https://perma.cc/M478-V536. 20 floor but does not preclude the Board from supplementing the statute’s requirements for the City. Plaintiffs next attempt to conjure a potential conflict between an exemption provided by the Board but denied by State officials. But the imagined conflict is illusory. Because the flu vaccine is not mandated statewide, there would never be a flu- specific exemption decision by State officials that would conflict with the Board’s. Nor would the reverse situation pose a problem. The fact that a preschool-aged child who has not yet reached school age may be denied admission to a day care or similar child care facility after receiving the immunizations required by § 2164 does not demonstrate a conflict. It is merely the potential consequence of local regulation exceeding a statewide floor. See Jancyn Mfg. Corp., 71 N.Y.2d at 97; see also Steinmann v. Village of Spring Valley, 261 A.D.2d 548, 549-50 (2d Dep’t 1999). Indeed, centralized decision-making is entirely absent in the vaccine exemption context, where variation between school districts is the norm. Under § 2164, individual schools are responsible for making individual determinations regarding 21 vaccination exemption claims. See 10 N.Y.C.R.R. §§ 66-1.3, 66-1.5; see also Appeal of S.B., 48 Ed. Dep’t Rep. 332 (Decision No. 15,875). Schools need not follow the decision made by a prior school.5 In short, plaintiffs’ claim about centralized uniformity misunderstands the State’s public health and education systems. B. The Legislature did not abrogate the Board’s power by amending its State aid framework. Plaintiffs’ argument that two amendments to the State’s aid program under Article 6 of the Public Health Law impliedly rescinded the Board’s vaccination authority without making mention of it is equally misguided. Both amendments provided the State Commissioner of Health with the authority to provide additional Article 6 financial aid to local health authorities to support local immunization efforts. Neither amendment purported 5 New York State Educ. Dep’t, Recommended School District Procedures for Implementing Requests for Religious Exemptions to Immunization (last updated 3/22/2016) (explaining that a principal may, but is not required, to review documentation related to an exemption claim from a prior school), archived at https://perma.cc/64PE-YYEA; see, e.g., Appeal of C.T., 56 Ed. Dep’t (Decision No. 16,964); Appeal of O.M & R.M., 52 Ed. Dep’t (Decision No. 16,414). 22 to rescind or in any way alter the Legislature’s repeatedly confirmed delegations to the Board. That is not surprising. Article 6 of the Public Health Law is about the provision of State aid. It provides for the method and means for the State to reimburse local health departments for certain health services. See Pub. Health Law §§ 600-613. The Article does not speak to the authority of local boards. To the contrary, Article 6 contemplates that local boards will provide health services that are “not eligible for state aid” but that they are nonetheless empowered to provide. Id. § 601(2)(f). It has nothing to do with the authority of local boards to provide health services that the State does not reimburse.6 Public Health Law § 613, which provides State funds for local immunization efforts, is no different. The statute directs the State Commissioner of Health to develop statewide immunization programs in conjunction with municipalities in order to encourage 6 Indeed, local boards fund the majority of their health services through local appropriation, not Article 6 funds. See New York State Department of Health, Strengthening New York’s Public Health System for the 21st Century, archived at https://perma.cc/T82C-447R. 23 vaccination statewide. Id. § 613(1)(a). It empowers the State Commissioner to expend State funds to support these programs, including funds that reimburse municipalities that adopt “qualifying programs.” Id. § 613(3)(b). Here too, nothing purports to alter the authority of local boards, let alone the authority of the City Board, to conduct activities that are not reimbursed. Plaintiffs, therefore, are mistaken in contending that a 2004 amendment to the Public Health Law, adopted at the State Commissioner’s request to confirm his or her authority to support local immunization programs for adults, silently rescinded the Board’s vaccination authority. L. 2004, ch. 207, § 5. Prior to the amendment, Public Health Law § 613 had authorized the Commissioner to expend State funds for local immunization programs but only for children.7 The Legislature adopted the 2004 amendment to clarify that § 613 authorized the Commissioner to expend funds for adult immunization programs as well.8 7 Senate Sponsor’s Mem. in Supp. and Assembly Sponsor’s Mem. in Supp. reprinted in Bill Jacket, L. 2004, ch. 207, at 3-7, archived at https://perma.cc/6UCX-YG3V. 8 Id. 24 Thus, as explained in our opening brief (App. Br. at 53-55), the Legislature amended § 613 to provide the Commissioner with explicit authority to support “local programs of inoculation to raise the immunity of children and adults.” L 2004, ch 207, § 5 (amended language italicized as in original). It then added identical language to both Public Health Law §§ 206 and 613 to confirm the Commissioner’s authority expend these funds but also to clarify that this did not empower the Commissioner to “authorize” new immunization requirements statewide. L. 2004, ch. 207, §§ 5-6 (codified as Pub. Health Law §§ 206(1)(l), 613(1)(c)). Plaintiffs contend that this statutory language—directed to the Commissioner’s expanded financial aid authority—rescinded the Board’s authority to adopt vaccination provisions under § 17- 109. But the 2004 legislation did not even the mention the Board. See L. 2004, ch. 207. And the statutes it amended relate solely to the Commissioner’s authority to provide State funds, not the authority of local boards. See Pub. Health Law § 206 (titled, “Commissioner; general powers and duties”); id. § 613 (titled, “State aid; immunization”). The fact that the Legislature provided 25 the Commissioner with additional authority but placed limitations on its use says nothing about the Board’s traditional authority to regulate within the City pursuant to express, and repeatedly confirmed delegations of state law. Plaintiffs’ contention that the Legislature’s 2013 amendments to Article 6 altered the Board’s authority is even less plausible. The 2013 amendments modified the procedure and conditions under which localities received State aid under Article 6. See L. 2013, ch. 56, Pt. E. Among other things, the amendment updated the form of the State aid application and conditioned the receipt of the aid on the provision of certain minimum health services. Pub. Health Law §§ 601, 603. Under the amendment, those minimum services, defined as “core public health services,” in the statute, id. § 602, now include “programs of immunization” against infectious disease, id. § 613(a); see also id. § 602(1)(b). The 2013 amendment’s exclusive concern was the conditions under which local boards and municipalities would receive State aid. Once again, nothing in the amendment’s text or history purports to alter the ability of localities to provide immunization 26 services without the support of State aid. See Pub. Health Law § 601(f). If anything, the 2013 amendment reflects a legislative policy generally in favor of immunization. The Legislature determined that localities would be required to provide baseline immunization services, which they are free to supplement—just at their own expense, not the State’s. Neither amendment manifests any intention—let alone a clear and unmistakable one—to alter the Board’s authority in any way. Rather, the amendments are consistent with this State’s essential public health structure. While the State provides a baseline of support, local health authorities are tasked with implementing health measures that are responsive to the specific needs of their residents and their communities. This tradition is particularly prominent in New York City, where the Board has successfully protected residents from the various communicable diseases that have threatened the City for years, using the specific authority it has been delegated for that purpose. Plaintiffs failed to demonstrate that the Legislature abandoned this longstanding structure for securing public health. 27 * * * Few would have imagined that Boreali would one day lead to a court striking down a flu vaccine rule under a specific legislative delegation of vaccination rulemaking authority. The First Department’s decision fundamentally conflicts with this Court’s Boreali precedents and significantly compromises the ability of regulatory agencies to tackle the problems the Legislature has directed them to handle. As regulatory flexibility is the cornerstone of administrative law, the First Department’s strict scrutiny of the methods the Board chose to protect New Yorkers from communicable disease imperils the ability of all regulatory agencies to fulfill their legislatively assigned tasks. CONCLUSION This Court should reverse the order below and dismiss this proceeding in its entirety. Dated: New York, New York October 19, 2017 Respectfully submitted, ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Appellants By: BENJAMIN WELIKSON Assistant Corporation Counsel 100 Church Street New York, NY 10007 212-356-0823 bwehkso@law.nyc.gov RICHARD DEARING DEVIN SLACK BENJAMIN WELIKSON of Counsel 28 CERTIFICATE OF COMPLIANCE I certify that this brief was prepared using Microsoft Word, and according to that software, it contains 4,680 words, not including the table of contents, the table of cases and authorities, the statement of questions presented, this certificate, and the cover. BENJAMIN WELIKSON
