Senate Bill No. 1

(By Senators Foster and Yost)

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[Introduced February 11, 2009; 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; requiring submission of affidavit to magistrate; requiring notification by magistrates; requiring the development of certain rules governing the magistrate review procedure; allowing the removal of students who are not immunized from school in times of emergency or epidemic; 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.

(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 July 1, 2009, the certificate of immunization shall be made available to health care providers and school systems to document the immunization records of school children. Beginning July 1, 2009, the certificate of immunization is 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 no fee may be 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 no fee may be 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 is 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 may 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 shall 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 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 30 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 the 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 90% 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 considered necessary or required by law, and shall distribute the same, free of charge, in such quantities as he or she may deem consider 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 shall have Commissioner of the Bureau for Public Health through the immunization program, has 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 may 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 an accurate record of any vaccine delivered as herein provided in this section.
(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 thousand nine hundred ninety- four July 1, 2009, and the membership of the committee existing prior to the effective date of the amendments made to this section made during the regular session of the Legislature in 2009 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 serves 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 16 years. These services shall be are 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.

§16-3-4 has been completely rewritten, therefore, strike-throughs and underscoring have been omitted.

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