October 1, 2002

James Withrow, General Counsel
Kanawha County Board of Education
200 Elizabeth Street
Charleston, West Virginia 25311-2197

Dear Mr. Withrow:

I am in receipt of your letter dated September 5, 2002 requesting clarification of a portion of a West Virginia Board of Education Policy 4110 regarding enrollment and immunizations. In particular, you wrote:

The revised Attendance Policy, §126-81-4.7 Enrollment states "A student is officially enrolled when one of the following occur, " and 4.7.3 states "student and/or parent/guardian appears at school to enroll with or without records."
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We interpret the West Virginia Code 16-3-4 to mean that no child shall enter school until reasonable proof of immunizations or proof of medical exemptions form immunizations has been received.

West Virginia Code 16-3-4 states in part that:

All children entering school for the first time in this state shall have been immunized against diphtheria, polio, rubeola, rubella, tetanus and whooping cough. Any person who cannot give satisfactory proof of having been immunized previously or a certificate from a reputable physician showing that an immunization for any or all diphtheria, polio, rubeola, rubella, tetanus and whooping cough 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. No child or person shall be admitted or received in any of the schools of the state 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 shall report the names of all such persons to the county health officer. It shall be 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 of health so that the person's immunization may be completed while missing a minimum amount of school: Provided, however, That no person shall be allowed to enter school without at least one dose of each required vaccine.
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Any parent or guardian who refuses to permit his or her child to be immunized against diphtheria, polio, rubeola, rubella, tetanus and whooping cough, who cannot give satisfactory proof that the child or person has been immunized against diphtheria, polio, rubeola, rubella, tetanus and whooping cough previously, 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 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.
Clearly, the purpose of this provision is to prevent the spread of contagious disease.

Your question was addressed, in part, in a previous interpretation dated November 20, 2001 to Superintendent Arvon wherein I stated:

Further guidance can be found in Title 64, Legislative Rule, Department of Health, Series 58 Immunization Criteria for Transfer Students, which states the following: 3.1. No transfer student, unless he or she has a medical exemption, shall be allowed to enter a West Virginia school without at least one dose of diphtheria and tetanus toxoids and pertussis vaccine (DTP) or adult tetanus and diphtheria toxoids (Td) or pediatric diphtheria and tetanus toxoids (DT) based on age appropriateness, one dose of live or killed poliomyelitis vaccine, one dose of measles vaccine and one dose of rubella vaccine.

3.2. Transfer students to West Virginia schools shall have ninety (90) days from the date of admission in which to complete a minimum of three doses of diphtheria and tetanus toxoids and pertussis vaccine (DTP) or adult tetanus and diphtheria toxoids (Td) or pediatric diphtheria and tetanus toxoids (DT) and three doses of poliomyelitis vaccine or be excluded from school.

No other guidelines have been passed either by the State Legislature or by Legislative Rule. As a result, it is my opinion that a student, who has received one dose of the required immunizations listed above, may attend school before receiving the final doses and shall have ninety (90) days from the date of admission to complete the required doses. This interpretation is the same whether or not the student is enrolling from outside the State of West Virginia.
Additionally, our West Virginia Supreme Court, in discussing the admission of a student transferring from one county to another in White v. Linkinoggor, 344 S.E.2d 633 (1986), indicated that the student should be provisionally admitted and the school system should presume that the immunization records were received when the child first enrolled in a West Virginia school. Specifically the Court stated that "The petitioner concedes that when he presented himself to the principal of Clay County High School he did not have his immunization records in hand. However, this omission did not warrant refusal to provisionally admit the petitioner." Id at 636.
In the situation of a child entering school for the fist time, as opposed to that of an in-state transfer, the student should be enrolled and placed in the least restrictive appropriate environment to deliver their education. This could mean instructing them in their home until the immunization requirements are met. I believe this addresses both the intent and the letter of West Virginia Code 16-3-4.

As a result, I interpret West Virginia Board of Education Policy 4110, §4.7.3. to be consistent with West Virginia Code 16-3-4 and case law in West Virginia and trust that Kanawha County will act in a manner consistent with this interpretation.

Hoping that I have been of service, I remain,

Sincerely,

/s/

David Stewart
State Superintendent of Schools

cc: Lenore Zedosky, Office of Healthy Schools