Gov. Andrew Cuomo signed legislation on June 13, 2019 amending Public Health Law (PHL) section 2164 to eliminate the long-standing availability of religious exemption to immunization in New York State schools. While preserving the use of medical exemptions to required vaccinations, this law no longer permits non-medical exemptions to the vaccination requirements for children attending public, private, parochial and charter schools for pre-kindergarten through 12th grade, or for children attending child daycare settings.

All children must either be vaccinated against measles and other identified infectious diseases, possess a valid medical exemption or otherwise provide evidence of immunity to these illnesses, as permitted by law.

In addition, on Aug. 16, 2019, emergency amendments to New York State Department of Health (DOH) regulations at Subpart 66-1 changed the process and standards by which school districts must review and determine student medical exemptions to vaccination requirements (see story, page 11).

The regulation now defines admittance or attendance at school to mean being enrolled or admitted to school for the purpose of participating in or receiving services at such school, including special education, participation in sports or other school sponsored events/activities and being transported on a school bus or other vehicle with other school children except when such services, transportation, events or activities are open to the general public.

School districts need to ensure that students who previously held religious immunization exemptions satisfy one of the following:

1. The student possesses a certificate of immunization providing proof that the student has received all required vaccinations for the grade level of the student within 14 calendar days (30 days may be granted for children entering school from out of New York State or out of the country) from the first instructional day in September; or
   
   
2. A certificate of immunization or proof that the student has received at least the first dose in each immunization series required by law for the grade level of the student, within 14 calendar days from the first instructional day in September, along with proof that age-appropriate appointments have been made for the student to receive the additional vaccinations in each such immunization series.
   
   
3. A valid and current (less than one year old) medical exemption from required immunization(s) which is supported by, at a minimum, a DOH “Medical Exemption Statement” form, completed by a New York State-licensed physician. The form must specify which required immunizations are contraindicated in accordance with the U.S. Center for Disease Control’s guidelines (www.cdc.gov/vaccines/hcp/acip-recs/general- recs/contraindications.html). The duration of the exemption should be indicated for each contraindicated immunization.

It should be noted that where immunization requirements have not been met and exclusion of unimmunized students occurs, state Public Health Law section 2164(8) requires school districts to advise parents that a child may be immunized without charge by the county health officer in the county where the child resides. School districts must also report all such student exclusions to local health authorities.

School districts are encouraged to keep excellent records and self-audit to ensure all students are properly immunized or have current medical exemptions. They should also communicate with parents about immunization requirements (see story, page 11).

Notably, DOH audits a sample of school districts each year for compliance with the requirements of Public Health Law section 2164. If compliance errors are discovered during the audit, student(s) will be excluded from school until they comply with the law. In addition, DOH will determine the cause of a school’s noncompliance and, where appropriate, may seek civil penalties against school districts of up to two thousand dollars ($2,000) for each violation.

Subsequent violations of these requirements with respect to the same or other students within a 12-month period may carry fines of up to $5,000 per occurrence, if the violations presented a serious health and safety threat to an individual(s). If any such violation(s) directly result in physical harm to an individual(s) the penalties may be increased to as much as ten thousand dollars ($10,000).

A full copy of the revised regulations is available at: https://on.ny.gov/2NmzsJJ.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Beth Sims of Shaw, Perelson, May & Lambert.