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Introduced Version House Bill 3238 History

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hb3238 intr
H. B. 3238


(By Delegates Ellem and Wells)
[Introduced March 25, 2005; referred to the
Committee on Education then the Judiciary.]




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 a conscientious and religious conviction exemption from mandatory immunizations for school children; requiring a parent or guardian to submit an affidavit to school authorities in support of the request for an exemption and to further submit an informed consent form, to be provided by the Bureau for Public Health; requiring that a physician who opines that a student should not be immunized for health reasons must be duly registered and licensed to practice medicine in this state; directing the Commissioner of the Bureau for Health (formerly the Director of Health) to propose legislative rules to implement a methodology designed to keep track of the number and identity of all students in each county with exemptions, as well as the justification for each exemption; and, provides a legislative finding concerning informed consent.

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; information disseminated; offenses; penalties.

(a) Whenever When a resident birth occurs, the state director of Commissioner of the Bureau for Public 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.
(b) All children entering school for the first time in this state shall must have been immunized against diphtheria, polio, rubeola, rubella, tetanus, and whooping cough, chicken pox, measles and mumps. Any person who cannot give satisfactory proof of having been immunized previously or a certificate from a reputable physician, duly registered and licensed to practice medicine in the United States, showing that, in the opinion of the physician, immunization for any or all diphtheria, polio, rubeola, rubella, tetanus,and whooping cough, chicken pox, measles and mumps, 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:
Provided, That a parent or guardian of a minor child who presents an affidavit in which the parent or guardian, on behalf of the minor child, objects to the immunization based on a deeply held conscientious belief or religious belief, the minor child is not required to be immunized. Additionally, an affidavit form, provided by the Bureau for Public Health, must be completed, that states that the parent or guardian, on behalf of the minor child, understands the benefits and risks of immunizations and the benefits and risks of not being immunized. This form may be obtained from the Bureau for Public Health website or local health departments, except that the Bureau for Public Health may remove unimmunized students during an outbreak or health emergency. The student shall not return or be admitted to school until the outbreak has been resolved and the Commissioner of the Bureau for Public Health 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 shall 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 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, chicken pox measles and mumps shall report the names of all such persons to the county health officer. It shall be is 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 Division of Health so that the person's immunization may be completed while missing a minimum amount of school: Provided, however, That no person shall may be allowed to enter school without at least one dose of each required vaccine.
(c) 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.
(d) 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, chicken pox, measles and mumps 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, chicken pox, measles and mumps. If any physician shall give gives any person a false certificate of immunization against diphtheria, polio, rubeola, rubella, tetanus and whooping cough, chicken pox, measles and mumps, he or she shall be is guilty of a misdemeanor and, upon conviction, shall be fined not less than twenty-five nor more than one hundred dollars.
(e) Any parent or guardian who refuses to permit his or her child to be immunized against diphtheria, polio, rubeola, rubella, tetanus, and whooping cough, chicken pox, measles and mumps who cannot give satisfactory proof that the child or person has been immunized against diphtheria, polio, rubeola, rubella, tetanus, and whooping cough, chicken pox, measles and mumps previously, except as otherwise provided in this section. 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 is 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.

(f) 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, designed for each county to collect and record statistical and identifying data relative to the number of exemptions claimed under the provisions of subsection (a) of this section, as well as the justifications for the exemptions and the percentage of students receiving the exemptions relative to the number of students who have been immunized,
the number of cases of each disease that has been laboratory confirmed and epidemiologically linked, the number of cases that are imported, the number of adverse reactions caused by immunizations that are reported each year to the Vaccine Adverse Event Reporting System (VAERS), and the complete vaccination status of cases that have been laboratory confirmed and epidemiologically linked. These proposed rules shall also include provisions in which each county must report its statistical and identifying data to the Commissioner.
(g) Health care providers providing vaccinations in the State of West Virginia shall obey vaccine adverse event reporting requirements under the National Childhood Vaccine Injury Act of 1986, which mandate that health care providers report serious health problems following vaccination, including hospitalizations, injuries and deaths, to the federal Vaccine Adverse Event Reporting System (VAERS). Health care providers in this state must file a duplicate copy of vaccine adverse event reports made to VAERS with the Bureau for Public Health.
§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 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. The Legislature further finds that the right to informed consent for a medical procedure which carries the risk of injury or death is a human right.
(b) The State Director of Health shall acquire vaccine for the prevention of polio, chicken pox, measles, mumps, rubella, diphtheria, pertussis, tetanus, hepatitis-b, haemophilus influenzae-b and other vaccine preventives of disease 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, 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 shall have the responsibility to properly store and distribute, free of charge, vaccines to private medical or osteopathic physicians within their jurisdictions to be utilized to check contagions and control epidemics: Provided,
That the private 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 any vaccine delivered as herein provided.
(d) The Director of the Division of Health is charged with establishing a childhood immunization advisory committee,
that is fairly balanced in terms of the points of view of its members and whose members do not have conflicts of interest with vaccine manufacturers, or who could financially gain directly or indirectly from vaccine mandates. The childhood immunization advisory committee is to plan for universal access, make recommendations on the distribution of vaccines acquired pursuant to this section and report biannually to the House and Senate Interim Committees on Health and Human Resources and the Judiciary as provided in section four of this article, and tracking of immunization compliance in accordance with federal and state laws. The childhood immunization advisory committee shall be appointed by the Secretary of the Department of Health and Human Resources no later than the first day of July, one thousand nine hundred ninety-four, and 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, the National Vaccine Information Center, and consumers. The state epidemiologist shall serve as an advisor to the committee. Members of the advisory committee shall serve two-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, and whooping cough and chicken pox. This information should include the availability of free immunization services for children.


NOTE: The purpose of this bill is to provide an exemption from mandatory immunizations for school children on the basis of conscientious or religious belief. The bill would require parents to assert their beliefs in an affidavit and, additionally, require such parents to complete an informed consent form, to be provided by the Bureau for Public Health, before the exemption could apply. Further, the bill would remove unimmunized students from school in times of emergency or epidemics. Lastly, the bill contains provisions in compliance with the Federal Advisory Committee Act of 1972.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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