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Flu Vaccine No Longer Required for Children Under 5, Manhattan Judge Rules

By Amy Zimmer | December 17, 2015 2:11pm
 A Manhattan judge sided with five moms who brought the suit against the city over its flu vaccine rule.
A Manhattan judge sided with five moms who brought the suit against the city over its flu vaccine rule.
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MANHATTAN — The city's policy ordering all children under 5 to be vaccinated against the flu to attend daycare or preschool is "invalid and unlawful," a Manhattan judge has ruled.

In a controversial decision, Manhattan Supreme Court Judge Manuel Mendez said the city had no standing when it passed a blanket rule in 2013 requiring all children between 6 months old up to the age of 5 get the flu shot or “flumist” nasal spray or be barred from their programs.

And he halted the city from being able to order that schools or daycares enforce the policy, effective immediately.

The decision comes just days before parents were obliged to have proof of all their students' flu vaccines.

Any child that didn't have proof of vaccination by Dec. 31 could have been kicked out until getting the vaccine, under the regulations. Any schools that refused to turn over proof of each student's flu vaccine would be subject to fines as high as $2,000.

The city’s Health Commissioner Mary Bassett was “extremely disappointed” by the decision.

“Influenza kills an average of 24,000 people each year in the United States, and the virus is spread easily in child care settings to children and their families,” she said in a statement. “The vaccination requirement will save lives.”

She added: “While we evaluate our legal options to protect New York City children from this severe disease, we strongly recommend that parents vaccinate their children against the flu.”

Five Manhattan and Brooklyn moms brought suit against the rule last month, claiming the city’s Health Department overstepped its authority since the requirement wasn’t voted on by the state legislature.

The moms said they felt fine complying with other vaccines required by state law, but not the flu vaccine since there was no edict from the state on the vaccine, the Daily News reported last month.

"In order to remain in daycare, these parents would be forced to violate the fundamental right to bodily integrity, among other fundamental rights, and inject their child with the flu shot against their desires and judgment," lawyer Aaron Siri wrote in a request for an injunction last month, the News reported.

The moms included Magdalena Garcia, of East Harlem; Clemence Rasigni, an investment banker from the Flatiron District; college student Lynn Rosenger of Borough Park; Gabrielle Jakob, a mental health consultant from Sheepshead Bay; and Michelle Carroll, of Bay Ridge, who provides communications services to biotech companies.

The programs their children attend include a private preschool, daycare, Parochial school, yeshiva and a Head Start program.

The mothers argued that if their children were excluded from day care it would cause financial and other hardships.

“If Ms. Jakob’s 2-year old and 4-year old daughters are excluded from day care she will likely have to quit her job as a mental health consultant to care for her daughters, which would cause financial and related irreparable harm,” the complaint said.

Young children are particularly vulnerable to complications from the virus. Four children in the city died from the flu in 2012, Health Department officials said when they passed the rule requiring the vaccine, which scientific studies have found to be safe for children.

Kids are a source of infection for the entire community, often passing the illness to other children and family members, officials added, noting that children who receive the vaccine are 60 percent less likely to need medical attention for the flu.