Senate Bill No. 670
(By Senators Foster, Hunter and McKenzie)
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[Introduced February 20, 2006; referred to the Committee
on Health and Human Resources; and then to the Committee on
Finance.]
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A BILL to amend and reenact §16-3-4 and §16-3-5 of the Code of West
Virginia, 1931, as amended, all relating to providing medical
and nonmedical exemptions from mandatory immunizations for
school children; requiring parental or guardian affidavit of
conscientious or religious belief; requiring parents and
guardians to assert their beliefs in an affidavit and to
present an affidavit affirming that they have completed an
educational course regarding the risks and benefits of
immunizations; providing that the affidavit be provided before
the exemption may apply; providing for submission of affidavit
to magistrate; providing for notification by magistrates;
requiring the development of certain rules governing the
magistrate review procedure; providing for the removal of
students who are not immunized from school in times of emergency or epidemics;
and providing that the Commissioner of
the Bureau for Public Health may, by rule, add or delete
diseases for which vaccines are required for school attendance
and provide for the membership of the Immunization Advisory
Committee
.
Be it enacted by the Legislature of West Virginia:
That §16-3-4 and §16-3-5 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. PREVENTION AND CONTROL OF COMMUNICABLE AND OTHER
INFECTIOUS DISEASES.
§16-3-4. Compulsory immunization of school children; required
vaccinations; exemptions; magistrate review; health
emergencies; appeals.
Whenever a resident birth occurs, the state director of health
shall promptly provide parents of the newborn child with
information on immunizations mandated by this state or required for
admission to a public school in this state.
All children entering school for the first time in this state
shall have been immunized against diphtheria, polio, rubeola,
rubella, tetanus and whooping cough. Any person who cannot give
satisfactory proof of having been immunized previously or a
certificate from a reputable physician showing that an immunization
for any or all diphtheria, polio, rubeola, rubella, tetanus and whooping cough is impossible or improper or sufficient reason why
any or all immunizations should not be done, shall be immunized for
diphtheria, polio, rubeola, rubella, tetanus and whooping cough
prior to being admitted in any of the schools in the state. No
child or person shall be admitted or received in any of the schools
of the state until he or she has been immunized as hereinafter
provided or produces a certificate from a reputable physician
showing that an immunization for diphtheria, polio, rubeola,
rubella, tetanus and whooping cough has been done or is impossible
or improper or other sufficient reason why such immunizations have
not been done. Any teacher having information concerning any
person who attempts to enter school for the first time without
having been immunized against diphtheria, polio, rubeola, rubella,
tetanus and whooping cough shall report the names of all such
persons to the county health officer. It shall be the duty of the
health officer in counties having a full-time health officer to see
that such persons are immunized before entering school: Provided,
That persons enrolling from schools outside of the state may be
provisionally enrolled under minimum criteria established by the
director of the department of health so that the person's
immunization may be completed while missing a minimum amount of
school: Provided, however,
That no person shall be allowed to
enter school without at least one dose of each required vaccine.
In counties where there is no full-time health officer or district health officer, the county commission or municipal council
shall appoint competent physicians to do the immunizations and fix
their compensation. County health departments shall furnish the
biologicals for this immunization free of charge.
Health officers and physicians who shall do this immunization
work shall give to all persons and children a certificate free of
charge showing that they have been immunized against diphtheria,
polio, rubeola, rubella, tetanus and whooping cough, or he or she
may give the certificate to any person or child whom he or she
knows to have been immunized against diphtheria, polio, rubeola,
rubella, tetanus and whooping cough. If any physician shall give
any person a false certificate of immunization against diphtheria,
polio, rubeola, rubella, tetanus and whooping cough, he or she
shall be guilty of a misdemeanor, and, upon conviction, shall be
fined not less than twenty-five nor more than one hundred dollars.
Any parent or guardian who refuses to permit his or her child
to be immunized against diphtheria, polio, rubeola, rubella,
tetanus and whooping cough, who cannot give satisfactory proof that
the child or person has been immunized against diphtheria, polio,
rubeola, rubella, tetanus and whooping cough previously, or a
certificate from a reputable physician showing that immunization
for any or all is impossible or improper, or sufficient reason why
any or all immunizations should not be done, shall be guilty of a
misdemeanor, and except as herein otherwise provided, shall, upon conviction, be punished by a fine of not less than ten nor more
than fifty dollars for each offense.
(a) When a resident birth occurs, the Commissioner of the
Bureau for Public Health shall promptly provide parents of the
newborn child with information on immunizations, including those
mandated by this state for admission to a school in this state.
(b) With vaccines widely available to reduce or prevent the
incidence of disease, the Legislature has determined that assuring
enrolled school children have been vaccinated against diseases is
a beneficial method of protecting public health.
(c) All children entering school in this state must be age
appropriately immunized against chickenpox, hepatitis-b polio,
rubeola, rubella, tetanus, whooping cough and any other disease
requiring vaccination as established by rule by the Commissioner
of the Bureau for Public Health
. Any person who cannot give
satisfactory proof of having been immunized previously or who does
not have a current certificate of exemption shall be immunized for
chickenpox, hepatitis-b,
diphtheria, polio, rubeola, rubella,
tetanus, whooping cough, and any other disease requiring
vaccination as established by rule by the Commissioner of the
Bureau for Public Health prior to being admitted to the schools of
this state. Satisfactory proof of immunization shall be provided
to the school in the form of the certificate of immunization. The
certificate of immunization shall be developed by the Commissioner of the Bureau for Public Health's, immunization program.
Beginning the first day of July, two thousand six, the certificate
of immunization shall be made available to health care providers
and school systems to document the immunization records of school
children. Beginning the first day of July, two thousand seven,
the certificate of immunization shall be the only form used for
this purpose. A parent or guardian may apply for an exemption as
follows:
(1) Medical exemption. -- A parent or guardian of a child
entering the schools of this state for the first time may request
a medical exemption from a required vaccination for his or her
minor child as follows:
(A) The parent or guardian of the child or ward presents a
certificate signed by a physician who is duly registered and
licensed to practice medicine in the United States which sets
forth the opinion and the basis of the opinion of the physician
examining the child or ward that immunization of the child or ward
is medically impossible or improper for any or all of the
following diseases including chickenpox, hepatitis-b
,
diphtheria,
polio, rubeola, rubella, tetanus, whooping cough and any other
disease requiring vaccination as established by rule by the
Commissioner of the Bureau for Public Health;
or, because of
another compelling medical reason immunization of the child or
ward for any or all of the following diseases including
chickenpox, hepatitis-b, diphtheria, polio, rubeola, rubella,
tetanus, whooping cough and any other disease requiring
vaccination as established by rule by the Commissioner of the
Bureau for Public Health should not be required for public school
attendance; and
(B) The parent or guardian presents an affidavit affirming
that he or she has completed and understood an educational course
approved by the Commissioner of the Bureau for Public Health to
include the nature of the risks of the failure to vaccinate a
child and the benefits of each vaccine for which a child is to be
exempt under the provisions of this section. The educational
course may be provided by an instructor in a classroom, by
videotape, or by any means approved by the Commissioner of the
Bureau for Public Health. A nominal charge may be imposed by the
Commissioner of the Bureau for Public Health for the educational
course, unless it is determined that the cost would be a hardship
for a parent or guardian then there would be no fee charged for
attendance.
(2) Nonmedical exemption. -- A parent or guardian with a
strongly held conscientious or religious belief that his or her
minor child or ward should not be subject to a required
immunization as provided in this section, may seek an exemption
from any or all required vaccinations for his or her minor child
entering the schools of this state for the first time
as follows:
(A) The parent or guardian executes an affidavit on a form
provided by the Commissioner of the Bureau for Public Health which
includes a list of required immunizations to allow a parent or
guardian to request an exemption for his or her child
from any or
all of the required immunizations. In the affidavit, the parent
or guardian shall state the conscientious or religious belief and
shall indicate the specific vaccines for which an exemption is
being requested;
(B) The parent or guardian presents an affidavit affirming
that he or she has completed and understood an educational course
approved by the Commissioner of the Bureau for Public Health to
include the nature of the risks of the failure to vaccinate a
child and the benefits of each vaccine for which a child is to be
exempt under the provisions of this section. The educational
course may be provided by an instructor in a classroom, by
videotape, or by any means approved by the Commissioner of the
Bureau for Public Health. A nominal charge may be imposed by the
Commissioner of the Bureau for Public Health for the educational
course, unless it is determined that the cost would be a hardship
for a parent or guardian then there would be no fee charged for
attendance;
(C) General requirement for exemptions. -- A parent or
guardian shall provide a copy of the required affidavits to
a
public health officer, designated for that purpose by the Commissioner of the Bureau for Public Health
who shall certify in
writing within ten working days of receiving the request for an
exemption that the granting of an exemption for each specific
vaccination will not present an imminent health threat to the
general public.
(D) Magistrate court review. -- The parent or guardian seeking
an exemption shall file the affidavits and certificate with the
magistrate court with jurisdiction in the county in which the school
in which the parent or guardian is seeking an exemption for a child
to be enrolled is located. The magistrate shall review the
affidavits and certificate presented by the parent or guardian to
determine whether the affidavits and certificate are complete and
whether they meet the requirements of this section. If the
magistrate determines that the affidavits and certificate meet the
requirements of this section, he or she shall notify the parent or
guardian, the public health officer for the county and the principal
of the school in which the minor intends to enroll that the
affidavits and certificate are complete and meet the requirements
of this section. The magistrate shall make the determination
required by this section within ten working days of receiving the
certified request from the public health officer. Upon notification
to the principal of the school by the magistrate, the child shall
be exempt from each required vaccination for which a certification
has been completed and shall be admitted to school unless under the specific circumstances and based upon verifiable data as determined
by the Commissioner of the Bureau for Public Health or the
designated public health officer, the child's attendance would pose
an unreasonable risk to the community.
(E) The Commissioner of the Bureau for Public Health may
require the parent or guardian of any child enrolled in schools who
is exempt from the required immunizations as provided in this
section or under an earlier statute to reapply for an exemption if
the commissioner determines that because of advances in medical
knowledge, public health knowledge or change in public health risk,
it is appropriate to require a review of all applicable exemptions.
The review shall include both medical and nonmedical exemptions.
(3) The Commissioner of the Bureau for Public Health in
cooperation with the State Supreme Court of Appeals shall develop
rules and procedures for carrying out the provisions of this section
relating to the responsibilities of magistrates in carrying out the
provisions of this section.
(4) The Commissioner of
the Bureau for Public Health or his or
her designated public health officer may temporarily suspend an
exemption for a student who is not immunized and exclude the student
from attending school during an outbreak or health emergency. The
student shall not return or be admitted to school until the outbreak
or health emergency has been resolved and the Commissioner of the
Bureau for Public Health or his or her designee approves the return or admittance to school. When a public health emergency has been
declared relating to a communicable disease, citizens identified as
being infected with the declared disease may be subjected to humane
quarantine using the least restrictive means possible, in order to
prevent the spreading of disease. Additionally, quarantine and
isolation must be by the least restrictive means necessary to
prevent the spread of a communicable disease to others and may
include, but is not limited to, confinement to private homes.
No
child or person may be admitted or received in any of the schools
of the state, except as otherwise provided in this section, until
he or she has been immunized.
Any teacher, school nurse or other school official having
information concerning any person who attempts to enter school
without having been immunized against
chickenpox, hepatitis-b,
diphtheria, polio, rubeola, rubella, tetanus and whooping cough or
other disease requiring vaccination as established by rule by the
Commissioner of the Bureau for Public Health shall report the name
of the person to the designated public health officer. It is the
duty of the Commissioner of the Bureau for Public Health or his or
her designated public health officer to see that persons are
immunized before entering school.
(d) Health officers and health care providers providing
immunizations shall give to all persons and children a certificate
free of charge showing that they have been immunized against
chickenpox, hepatitis-b,
diphtheria, polio, rubeola, rubella,
tetanus and whooping cough or other disease requiring vaccination
as established by rule by the Commissioner of the Bureau for Public
Health, or he or she may give the certificate to any person or child
whom he or she knows to have been immunized against chickenpox,
hepatitis-b, diphtheria, polio, rubeola, rubella, tetanus and
whooping cough or other disease requiring vaccination as established
by rule by the Commissioner of the Bureau for Public Health.
(e)
The Commissioner of the Bureau for Public Health is hereby
directed to propose rules for legislative approval in accordance
with the provisions of article three, chapter twenty-nine-a of this
code, to implement the provisions of this section, to add or remove
diseases requiring vaccination for school attendance, addressing the
issue of school transfers, reporting requirements for each county
related to the exemptions and the membership of the immunization
advisory committee as provided for in section five of this article.
(f) Any person adversely affected by a decision of the designee
of the Commissioner of the Bureau for Public Health may appeal the
decision to the commissioner within thirty days of the decision.
The appeal shall be in writing and shall include the reason or
reasons the designee's decision should be changed. Within ten days
of receipt of the written appeal, the Commissioner of the Bureau for
Public Health shall either uphold the decision of the designee or
overturn it. In either case, he or she shall notify the appellant in writing of his or her decision. The decision of the commissioner
is final administrative procedure available to an adversely affected
party. Any person adversely affected by a decision of the
Commissioner of the Bureau for Public Health may appeal the decision
to the circuit court with jurisdiction for the county in which the
school of attendance is located.
§16-3-5. Distribution of free vaccine preventives of disease.
(a) Declaration of legislative findings and purpose.
-- The
Legislature finds and declares that early immunization for
preventable diseases represents one of the most cost-effective means
of disease prevention. The savings which can be realized from
immunization, compared to the cost of health care necessary to treat
the illness and lost productivity, are substantial. Immunization
of children at an early age serves as a preventative preventive
measure both in time and money and is essential to maintain our
children's health and well-being. The costs of childhood
immunizations should not be allowed to preclude the benefits
available from a comprehensive, medically supervised child
immunization service. Furthermore, the federal government has
established goals that require ninety percent of all children to be
immunized by age two and provided funding to allow uninsured
children to meet this goal.
(b) The State Director Commissioner of the Bureau for Public
Health shall acquire vaccine for the prevention of polio, measles, mumps, rubella,
chickenpox,
diphtheria, pertussis, tetanus,
hepatitis-b, haemophilus influenzae-b and other vaccine preventives
of disease preventable diseases as may be deemed necessary or
required by law, and shall distribute the same, free of charge, in
such quantities as he or she may deem necessary, to county and
municipal health officers public and private providers, to be used
by them for the benefit of and without expense to the citizens
within their respective jurisdictions, to check contagions and
control epidemics.
(c) The county and municipal health officers
Commissioner of
the Bureau for Public Health through the immunization program,
shall
have the responsibility to properly store and distribute, free of
charge, vaccines to public and private providers medical or
osteopathic physicians within their jurisdictions to be utilized to
check contagions and control epidemics: Provided,
That the public
and private providers medical or osteopathic physicians shall not
make a charge for the vaccine itself when administering it to a
patient. The county and municipal health officers shall provide a
receipt to the State Director of Health for Commissioner of the
Bureau for Public Health through the immunization program shall keep
and accurate record of any vaccine delivered as herein provided.
(d) The Director of the Division Commissioner of the Bureau for
Public
Health is charged with establishing a childhood an
immunization advisory committee,
to plan for universal access, make recommendations on the distribution of vaccines acquired pursuant
to this section, advise the Commissioner and the state health
officer on the changing needs and
opportunities for immunization
from known diseases for all persons across their life span
and
tracking of track immunization compliance in accordance with federal
and state laws. The childhood Members of the immunization advisory
committee shall be designated and appointed by the Secretary of the
Department of the Health and Human Resources no later than the first
day of July, one two thousand nine hundred ninety-four six, and the
membership shall be comprised of representatives from the following
groups: Public health nursing, public health officers, primary
health care providers, pediatricians, family practice physicians,
health care administrators, state medicaid program, the health
insurance industry, the Public Employees Insurance Agency, the
self-insured industry and consumers continue until established by
rule as provided by the provisions of subsection (f) of section four
of this article. The state epidemiologist shall serve as an advisor
to the committee. Members of the advisory committee shall serve
two-year four-year terms.
(e) All health insurance policies and prepaid care policies
issued in this state which provide coverage for the children of the
insured shall provide coverage for child immunization services to
include the cost of the vaccine, if incurred by the health care
provider, and all costs of administration from birth through age sixteen years. These services shall be exempt from any deductible,
per-visit charge and/or copayment provisions which may be in force
in these policies or contracts. This section does not exempt other
health care services provided at the time of immunization from any
deductible and/ or copayment provisions.
(f) Attending physicians, midwives, nurse practitioners,
hospitals, birthing centers, clinics and other appropriate health
care providers shall provide parents of newborns and preschool age
children with information on the following immunizations:
Diphtheria, polio, mumps, measles, rubella, tetanus, hepatitis-b,
hemophilus influenzae-b, chickenpox and whooping cough
and other
diseases requiring vaccination as established by rule by the
Commissioner of the Bureau for Public Health. This information
should include the availability of free immunization services for
children.
NOTE: The purpose of this bill is to provide medical and
nonmedical exemptions from mandatory immunizations for school
children. The bill would require parents and guardians to assert
their conscientious or religious beliefs in an affidavit. Parents
or guardians seeking an exemption for a child would be required to
present an affidavit affirming that they have completed and
understood an educational course approved by the Commissioner of
Public Health regarding the risks and benefits of immunizations, to
be provided by the Bureau for Public Health, before the exemption
could apply. Further, the bill would remove students who are not
immunized from school in times of emergency or epidemics. The bill
provides that the Commissioner of the Bureau of Health may by rule
add or delete diseases for which vaccines are required for school
attendance and to reconstitute the immunization advisory committee.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would be added.