Public Health and Our Children

    Vaccines and the Law – Your Questions Answered

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    Have you ever met a parent who has an undecided stance on vaccines? Me neither. It’s a parenting decision that elicits emotional responses, a hot-button topic. But since firearms safety, healthcare, and the Supreme Court’s ruling on DOMA have been covered here, you already know this column does not shy away from topics that make people think. Vaccine law deals with the health and safety of our children, and we parents need to be in the know.

    The Role of the State: Can Virginia Mandate Vaccinations? The short answer is, yes – with exceptions. And we’ll get into those, but it’s worth understanding how the overarching laws work first. The U.S. Constitution gives the states broad power in the regulation of public health and safety, and vaccines fall under this category. A little over a hundred years ago, the Supreme Court ruled that individuals may be required to receive vaccinations in the interest of public health. And in the twenties, SCOTUS affirmed mandatory vaccine requirements for school children entering both public and private schools. Because of the U.S. Supreme Court’s interpretation of the Constitution in this manner, Virginia can legally require vaccines of school children.

    Virginia’s Requirements for Public and Private Schools. Like all states, Virginia has certain vaccine requirements for school children, and the standards apply to children entering both private and public schools. Documentary proof of immunizations is required of each child in order to attend a public or private elementary, middle, or secondary school, child care center, nursery school, family day care home, or developmental center. Children will be admitted if they are immunized according to the harmonized schedule of the Centers for Disease Control and Prevention, American Academy of Pediatrics, and American Academy of Family Physicians, a copy of which can easily be obtained through the Virginia Department of Health. You’ll find
    an easy-to-navigate immunization section
    at vdh.virginia.gov.

    Playing Catch-Up. If your child is not immunized according to the schedule, there are catch-up options and requirements. Virginia law states that any child with incomplete immunizations may be admitted conditionally if that child provides proof of having received at least one dose of the required immunizations accompanied by a schedule for completion of the required doses within ninety days. One caveat: If more than two doses of the hepatitis B vaccine are required, the conditional enrollment period is lengthened to 180 days. Failure to comply with the schedule results in exclusion from school until immunizations are resumed.

    Homeschooling Requirements. Virginia law unequivocally places the same immunization requirements on children being homeschooled as those in public or private schools. To be clear, parents of homeschooled children must vaccinate their children according to the same schedule as is required of everyone else. School superintendents have the authority to collect proof of immunization at their discretion, and compliance is mandated by law.

    There are limited exceptions to the vaccination requirements:

    Medical Exemption. Children will not be required to have immunizations if the school has written certification from a licensed physician, licensed nurse practitioner, or local health department that one or more of the required immunizations may be detrimental to the student’s health. The certification must indicate the specific nature and probable
    duration of the medical condition or circumstance that contraindicates immunization. Some examples include allergic reactions or immune deficiencies, but overall, medical exemptions are quite rare.

    Religious Exemption. Virginia allows for an exception to the vaccine requirements if vaccination contradicts a religious belief. To obtain the exemption, parents must sign an affidavit stating that their (or their child’s) religious tenets or practices conflict with the administration of immunizing agents. To be clear, an affidavit is a serious legal document with serious legal consequences; the exemption requires a truthful assertion of religious belief that conflicts with immunization.

    The religious exemption is at the forefront of the vaccination legal debate, and it warrants a bit of discussion. Although the U.S. Constitution protects freedom of religion, not all religious activity is protected (think animal sacrifice or other illegal acts). And religious freedom can, and does, come into conflict with other Constitutionally protected actions, such as a state’s right to promote public safety. Not all states have religious exemptions. The Mississippi Supreme Court, in fact, considered the Constitutional right to freedom of religious expression against the state’s right to promote public health and safety, and ruled that the state’s interest to protect children is so compelling that it trumps a right to religious exemption from vaccines. And as outbreaks of vaccine-preventable diseases increase across the country, many other states are tightening their reigns on religious exemptions to preclude insincere assertions of belief and exclude exemptions based on philosophical beliefs rather than religion.

    Unimmunized Children During an Outbreak. Whether exempt due to religion or a medical condition, an unimmunized child may be excluded from school during a disease outbreak, for the safety of the child, until the danger has passed. Similar laws in other states have been tested in the court system and pass Constitutional muster; given the upswing in vaccine-preventable disease outbreaks in the last decade, this exclusion from school is a distinct possibility for unvaccinated children.

    Demonstration of Immunity. A final exemption occurs when a student can demonstrate existing immunity to a particular disease, thereby nullifying the need for that particular vaccine. Methods of proof of immunity can include verification by a health care provider, existence of antibodies, or serological testing results. Contact your child’s pediatrician for more information.

    Excluding these limited exceptions, immunization is compulsory for school-aged children in Virginia. Compliance with the law is required and will help curb future outbreaks of vaccine-preventable diseases.

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    Kelly Hall
    Kelly Hall, Esq., is a full-time mom and part-time attorney. She practices law in Richmond.