August 26, 2019 Regulations Regarding Immunization Requirements
KEEPING YOU INFORMED…
We are writing to inform you that, on August 16, 2019, the New York State Department of Health and Office of Children and Family Services issued emergency regulations that immediately took effect regarding immunization requirements. These regulations are intended to clarify and strengthen the process required for medical exemptions, as well as ensure that immunization requirements are consistent with recent amendments to the Public Health Law eliminating religious exemptions. The Department of Health has also issued guidance to assist schools and day care centers in implementing the regulations. A copy is attached for your reference.
Although the religious exemption to immunization requirements for schools and day care centers has been eliminated, the medical exemption still exists. The emergency regulations’ main revision involves the process for obtaining a medical exemption. Pursuant to the new regulations, a physician, on behalf of the student seeking the medical exemption, must submit to the Statewide immunization information system documentation demonstrating that the vaccine “may be detrimental to the child’s health.” In other words, the physician must show that a child has a condition making the administration of the immunization inadvisable consistent with the Advisory Committee on Immunization Practices (ACIP). More information can be found at https://www.cdc.gov/vaccines/hcp/acip-recs/general-recs/contraindications.html. This submission must utilize a form approved by the Department of Health; a written physician statement is no longer acceptable. Remaining unchanged are the requirements that medical exemptions be reissued annually and that they are only valid for one year.
New York State Public Health Law § 2164 requires that a principal not admit a child to school unless a parent/guardian has provided the school, BOCES or day care center with one of the following:
- A certificate of immunization from a health care practitioner stating that the child has been fully immunized, which is defined as receiving appropriate immunizations or other evidence demonstrating the child’s immunity (e., through serologic (blood) tests);
- Documentation that the child is in process of receiving immunizations; or
- A medical exemption form that is signed by a physician licensed to practice medicine in New York State.
The emergency regulations also provide schools, BOCES and day care centers with more clarity regarding the revisions to New York State Public Health Law § 2164 by revising and adding some new definitions to the regulations.
The definition of “immunity” has been revised to mean:
- A child has had a positive serologic test for measles, mumps and rubella, or laboratory confirmation of these diseases;
- A child has had a positive serologic test for chicken pox (varicella), laboratory confirmation of the disease or has had the disease as verified by a physician, nurse practitioner or physician’s assistant;
- A child has had a positive serologic test for hepatitis B; or
- A child has had a positive serologic poliomyelitis that was submitted to the school, BOCES or day care center prior to September 1, 2019. Serologic tests against poliomyelitis submitted to a school, BOCES or day care center on or after September 1, 2019 will not be accepted in place of the vaccination.
The definition of “age appropriate” was revised to make it clear that, in order for a vaccination to be age appropriate, it has to be administered within four calendars days of the minimum recommended age or interval.
The definition of “in process” was revised to provide that a child can be considered in process if the child obtains serologic tests within 14 calendar days (previously it was 30 calendar days) of notification of the parent/guardian that the testing is requested.
A definition of “Attend or Admit” was added to the regulations. Attend or admit means enrolled in, or admitted to, a school for purposes of participating in or receiving services from the school district, including, but not limited to, special education services or related services, intra-scholastic or inter-scholastic sports, school-sponsored events or activities, and transportation. Due to the addition of this definition, it is now clear that home schooled students who do not have the required immunizations will not be able to attend State tests or receive special education services at the school district.
Please contact us if you would like assistance revising your policies in light of these regulations and guidance. If you have any questions regarding these regulations or guidance, please contact Mara Harvey at 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
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© Lamb & Barnosky, LLP 2019