Court orders hearing on medical exemption denied to student with autism

Berkeley Brean
Updated: October 17, 2019 10:58 AM
Created: September 23, 2019 11:27 AM

ROCHESTER, N.Y. (WHEC) — The family of a boy with autism barred from school because he was unvaccinated wanted urgent help. And now they're getting it. 

Just hours after News10NBC exposed the decision to keep the boy out of school last Friday, the New York State Supreme Court ordered a hearing on the case. It says the school principal, doctor and nurse and the state health commissioner have to be in court this Friday to explain their decision. 

"Hey there, mister!" Carl Schwartz said when his son walked into the kitchen of their home in Penn Yan. 

Thorn Schwartz is 11 years old. On Friday, September 20, I told you Thorn has severe autism. Because of the way he reacts to medicine and food, his doctor applied for a medical exemption from vaccines so Thorn could attend Creekside School at BOCES 1 in Fairport. 

But on September 9, Thorn's school sent a letter to his parents denying his exemption. BOCES told me it was following the "law and guidance provided by the New York State Department of Health."

His parents say Thorn has had the exemption three years in a row. 

"What we've come to understand is that the rules and regulations regarding the exemptions changed very recently," Carl Schwartz said.  

At 11:32 a.m. on Monday, I emailed the state Department of Health and asked for the specific Department of Health change in policy to medical exemptions. 

At 3:45 p.m. Monday, the Department of Health shared a link to its "emergency regulations to strengthen medical exemptions" issued on August 16. 

Effective immediately, the regulations say doctors will have to fill out a new "medical exemption form" and "outline specific justifications for each required vaccine." Last school year, doctors could just submit a "signed statement to schools." 

The Schwartz’s say Thorn's doctor filled out the new form. 

In June, state lawmakers voted to repeal the religious exemption for vaccines after an outbreak of measles. Assemblyman Mark Johns, who represents Fairport and Thorn's school, voted yes. 

Chief Investigative Reporter Berkeley Brean: "When you voted to remove the religious exemption, was there anything that involved medical exemptions?"

Assemblyman Mark Johns (R-Fairport): "No. Medical exemptions would still exist."

Brean: "No change to them at all as far as you knew."

Johns: "Yeah, that's the way the law was supposed to be interpreted."

Thorn's father Carl, a lawyer, used his legal background on last Wednesday. He sued Thorn's school principal, the BOCES 1 doctor and clinical nurse; and Dr. Howard Zucker, the commissioner of state health. 

Schwartz wrote in an affidavit that "immune system stimulation can trigger setbacks for Thorn." He wrote Thorn "is the reason why such exemptions exist."

"This is a life or death situation for this family," Carl told me. "This little guy needs to be in school now."

The court order signed by Supreme Court Justice William Taylor sets up a hearing Friday afternoon. The defendants have to submit paperwork on Wednesday.

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