Interpretation's Date: July 28, 2005
by superintendent Steven L. Paine
Section: IV. Students
July 28, 2005
Doris L. Weekley
Re: Required Immunizations
Dear Ms. Weekley:
I am in receipt of your request for a Superintendent's Interpretation regarding the immunization of students. In particular, you asked the following:
1. ". . . Should [schools] go ahead admit these [foster] students and what happens when these [immunization] records do not materialize?
2. How should we handle special education students and providing [sic] a Free Appropriate Education (FAPE)?"
3. . . . What are the correct procedures that need to be followed when the parents fail to provide proof [of immunization]?"
You correctly cite W.Va. Code 16-3-4 (2004), which states in part:
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. (emphasis added).
Additionally, W.Va. 64C.S.R.58, Immunization Criteria for Transfer Students, states that:
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's 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.
The most recent Superintendent's Interpretation on immunizations, October 1, 2002, noted that "a student, who has received one dose of the required immunizations listed above [DTP, Td, or DT], 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." Prior to the initial received dosage, 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."
The March 1, 2004 memorandum to county superintendents reaffirmed an earlier September 21, 1990 Superintendent's Interpretation that indicated that children in the foster care system were to be enrolled, regardless of the lack of 1) academic records 2) absence of proof of custody or guardianship or 3) immunization records. The Interpretation specifically reiterated the following:
West Virginia Board of Education Policy 2510, Assuring the Quality of Education: Regulations for Education Programs, §7.2.4.g. clarifies that
"Home/hospital services may also be provided temporarily at the direction of the county superintendent for students who have not met the immunization requirements of W. Va. Code 16-3-4."
In sum, it remains my opinion that a student in foster care may be enrolled and enter the public schools in West Virginia without immunization records in hand, excepting those entering school for the first time.
For students enrolling for the first time in a West Virginia School system, each must receive one dose of the required immunization prior to entering West Virginia schools. After receiving the first dose, the student shall have ninety (90) days in which to complete receiving the final required doses of those vaccines to physically remain in the school environment. In the unusual event that a parent and/or guardian refuses to obtain the required first dose prior to the child entering the school facility, the county school board should not simply refuse enrollment. Rather, the county should enroll the child, and then determine how educational services may be rendered in the least restrictive environment. In this way the student is enrolled and receiving educational services, but may not be permitted to enter the school environment.
W.Va. Code 16-3-4 requires all students to be immunized unless he or she provides a "certificate from a reputable physician showing that an immunization . . . is impossible or improper or sufficient reason why any or all immunizations should not be done." The requirements of that section apply to all special education and regular students equally and can be construed together with Individuals with Disabilities Education Act (IDEA) and the Rehabilitation Act of 1973, Section 504.
West Virginia Board of Education Policy 4110, §5.3.2.E, requires the county attendance director to "immediately assist in obtaining immunizations or record of immunizations or other medical records for those students who do not have them, and assure that students are enrolled in school while the records are being obtained." This Policy reflects the requirements of 42 U.S.C. 11431 et seq., the McKinney-Vento Homeless Assistance Act. As a result, enforcement procedures may include, but not be limited to the following: (1) contacting the county health department, pursuant to West Virginia Code 16-3-4; (2) reporting to the Department of Health & Human Resources, pursuant to W.Va. Code 49-6A-2 for neglect; (3) contacting county magistrates for guidance in addressing the procedure for penalties of 16-3-4, and any other relevant agencies to enforce the penalties set forth in 16-3-4. County Attendance Directors should be sure to diligently pursue these means as a parent's continued refusal to obtain the required immunizations may require the student to be educated in another setting pursuant to West Virginia Board of Education Policy 2510, Assuring the Quality of Education: Regulations for Education Programs, §7.2.4.g., quoted above.
Hoping I have been of service, I am,
Steven L. Paine