Know the Law About Immunization Requirements When Children Enter Child Care in California

Transcription

1 Know the Law About Immunization Requirements When Children Enter Does a child have to be immunized before starting child care? Yes. Community Care Licensing Division (Licensing) rules require immunization unless a valid exemption applies and the child s parent or legal guardian has followed the process 1 required to establish the exemption. Otherwise a child care provider may not admit an unimmunized child. 2 What are the grounds for an exemption? Exemption from the immunization requirement is available only on the basis of: Personal beliefs or Religious beliefs or Child s physical condition or medical circumstances. How does a parent establish a valid exemption? The process the parent must follow depends on the reason for the exemption. If the reason is personal or religious beliefs, completion of a Personal Beliefs Exemption to Required Immunizations form is required. 3 If the reason is physical condition or medical circumstances that make immunization unsafe for the child, the parent must get a letter from a licensed doctor. 4 What is the process to complete the Personal Beliefs Exemption to Required Immunizations form? The form has two sections. A health care professional fills out Section A (unless the basis for the exemption is the parent s religious beliefs) and the parent or guardian fills out Section B. Section A The health care professional must: 1. Check the box indicating whether she/he is a physician or surgeon, nurse practitioner, physician assistant, naturopathic doctor, or credentialed school nurse; 2. Sign and date the form within six months of the child entering child care, attesting that she/he has informed the parent about the benefits and risks of immunizations and health risks to the child and to the community of the communicable diseases for which immunization is required, and 3. Provide his/her name, address, and phone number. Section B Part I. The parent must check one of two boxes and sign and date the section within six months of the child entering child care.

2 P. 2 By checking the first box, Receipt of information, the parent confirms that the health care practitioner has given the parent the required information on the benefits and risks of immunizations to the child and health risks to the child and to the community of the communicable diseases for which immunization is required. By checking the second box, Religious beliefs, the parent confirms that his/her religion prohibits seeking medical advice or treatment from a health care practitioner. Again, if the parent checks this box the health care professional need not complete Section A. Section B Part II. The parent must sign and date an affidavit confirming that she has given the child care provider a record of all the required immunizations the child has received and that the parent understands that, for the protection of both unimmunized children and the other children in care, unimmunized children may not attend child care during an outbreak of, or after exposure to, any disease for which Licensing requires immunization. These diseases are: 5 Haemophilus influenza type b (Hib meningitis) DTaP (diphtheria, tetanus, pertussis/whooping cough) MMR (measles, mumps, rubella Polio Hepatitis B Varicella (chickenpox) EXAMPLE Ms. Fox fills out the exemption form for her 3-month old son, Jesse, and checks the Religious beliefs box. May Ms. Judy, the child care provider, ask Ms. Fox to provide Part A completed by a health care professional? No. EXAMPLE Ms. Fox fills out the exemption form and checks the second box, Receipt of information. May Ms. Judy require Ms. Fox to provide Part A completed by a health care professional? Yes. What is required to establish a Physical Condition or Medical Circumstances Exemption? This exemption requires a written statement signed by a licensed doctor that immunization would be unsafe because of the child s physical condition or medical circumstances. The statement must include the doctor s estimate of how long immunization should be delayed. 6 EXAMPLE Jesse, at one month of age, had a severe allergic reaction to his first dose of polio vaccine, and so his pediatrician, Dr. Lee, wants to delay the second dose until Jesse is one year old. Dr. Lee must state in writing that immunization against polio is currently unsafe for Jesse and is not advised until Jesse is a year old. EXAMPLE When Jesse turns one year old Dr. Lee gives him the second dose of polio vaccine, which again causes a severe allergic reaction. Dr. Lee now believes Jesse should not receive any more doses of the vaccine.

3 P. 3 Dr. Lee must write another letter, stating that immunization against polio for Jesse is unsafe and will never be advised. Must a child care provider enroll a child who has an immunization exemption? Yes, under laws that protect religious beliefs and those that prohibit discrimination against people with disabilities. California public health regulations require licensed child care providers to admit a child with a valid medical or personal beliefs exemption unconditionally. 7 Parents may file a complaint with Community Care Licensing against any child care provider who refuses to admit an unimmunized child who has a valid exemption, and Licensing may then take disciplinary action against that child care provider. Federal and state civil rights laws also protect children who obtain an exemption due to religion, disability, or medical condition. 8 Therefore, a parent may sue a child care provider and/or file a discrimination complaint with the appropriate government agency against a child care provider who refuses to admit a child with a valid exemption and thereby discriminates against that child on the basis of religion, disability, or medical condition. Such actions by the parent of an excluded child could expose the child care provider to significant legal costs. 9 How can child care providers avoid getting in trouble with Licensing or sued by parents? Inform parents about immunizations. 1. Tell parents, both verbally and in your written contract, how you feel about immunizations and your legal obligations. 2. Upon request, explain the immunization exemptions and what is required to obtain them. 3. Explain that when there is good cause to believe that an unimmunized child has been exposed to a communicable disease listed in Health & Safety Code Section , the child may be excluded from your child care until the local public health department decides that the child is no longer at risk of developing the disease. 4. Give parents credible, scientific literature on the benefits and/or risks of immunizations. SAMPLE CONTRACT LANGAUGE: Happy Babies Child Care believes that immunizations are important to protect your child s health and the health of other children in our care. Under California law, I am required to refuse admission to any unimmunized child who does not have a valid exemption. If you enroll an unimmunized child, make sure the exemption documentation is complete and is signed and dated within six months of the child entering your care. As required by law, keep copies of all immunization paperwork, including exemption documentation, in the child s file. 10

4 P. 4 Inform all parents that unimmunized children may be in your care. You may not tell parents whether you currently care for unimmunized children; you may reveal only that unimmunized children may be in your care. Based on broad personal rights licensing regulations, this rule applies even if you do not offer the names of unimmunized children. 11 However, if the parent of an unimmunized child waives confidentiality, you may reveal the child s name to other parents. Please note that you should ask an attorney to review the parent s waiver to make sure it is valid. Child Care Law Center 2014 This publication is intended to provide general information about the topic covered. It is made available with the understanding that the Child Care Law Center is not engaged in rendering legal or other professional advice. We believe it is current as of November 2014 but the law changes often. If you need legal advice, you should consult an attorney who can specifically advise or represent you. Permission to reproduce, transmit or disseminate this information may be requested by info@childcarelaw.org Endnotes 1 Cal. Health & Safety Code (b) (child care providers may not unconditionally admit any person as a pupil of any child care center, day nursery, nursery school, family day care home, or development center, unless, prior to his or her first admission to that institution, he or she has been fully immunized. ); Cal. Code Regs., tit , (children in family child care homes and centers must be immunized against specified diseases before admittance into child care; child care providers may admit children with immunization exemptions, and child care providers must maintain immunization and immunization exemption records); Cal. Code Regs., tit ( A pupil with a permanent medical exemption or a personal beliefs exemption to immunization shall [must] be admitted unconditionally ) (emphasis added); see Cal. Code Regs., tit (defining pupil as a person under age 18 years admitted to or seeking admission to any private or public elementary or secondary school, child care center, day nursery, nursery school, family day care home, or development center. ). For schedule of required immunizations see Cal. Code Regs., tit ; parent in this publication includes legal guardian. 2 For an immunization exemption to be valid, a parent must file it with the governing authority. Cal. Health & Safety Code , Governing authority means the governing board of each school district or the authority of each other private or public institution responsible for the operation and control of the institution or the principal or administrator of each school or institution. Cal Health & Safety Code (a). Governing authority in the child care context is the family child care provider or the administrator of a child care center. 3 Cal. Health & Safety Code (b); Cal. Dept. of Public Health, Personal Beliefs Exemption to Required Immunizations, CDPH 8262, Oct. 2013, available at see Health & Safety Code (c)(2) (explaining that A letter signed by a health care practitioner that includes all information and attestations included on the form is also valid and acceptable.). 4 Cal. Health & Safety Code Cal. Code Regs., tit Cal. Health & Safety Code

5 P. 5 7 Cal. Code Regs., tit ; See Cal. Code Regs., tit (a) (defining unconditional admission as admission based upon documentation of receipt of all required immunizations or upon documentation of a permanent medical exemption or of a personal beliefs exemption to immunization in accordance with Section ). 8 The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination on the basis of disability by child care centers and family child care homes. 42 U.S.C (7)(K) (day care centers and other social service establishments are public accommodations ) & (a) (public accommodations may not discriminate against individuals on the basis of disability). The ADA prohibits exclusion of a child who obtains an exemption from immunization requirements because of a physical or mental impairment that substantially limits one or more major life activities or a history of such an impairment. See 42 U.S.C (1)(A) and (B) (defining disability). Some children who obtain an exemption for physical condition or medical circumstances may be among those whom the ADA protects. Children who obtain exemptions for physical condition or medical circumstances may also be protected under the California Unruh Civil Rights Act (Unruh Act) and California Disabled Persons Act (CDPA), which prohibit discrimination by child care centers and family child care homes based on disability and medical condition. Cal. Civ. Code 51(b) (prohibiting discrimination on the basis of disability or medical condition by businesses of any kind) and 54(a) (entitling people with disabilities or medical conditions to full and free use of public places). A child care provider who violates the ADA also violates the Unruh Act and CDPA. Cal. Civ. Code 51 & 54 (c). The Unruh Act further protects children who obtain an exemption from immunization requirements because of their religion. Cal. Civ. Code 51(b). None of these laws identify personal belief as a protected category, and California courts have not ruled on whether the Unruh Act requires inclusion of a child who obtains an immunization exemption on the basis of religious or personal belief. Other jurisdictions have held that civil rights laws do not prevent discrimination against those who do not immunize on the basis of personal belief. Mason v. General Brown Cent. School Dist. 851 F.2d 47, 54 (2 nd Cir. 1988) (federal appellate court affirmed ruling that parents opposing mandatory immunization of their child lacked standing to challenge immunization law on First Amendment grounds and had no cause of action for damages pursuant to 1983 civil rights claims because their request for an immunization exemption was based on personal beliefs, a category not protected under the First Amendment); see Farina v. Board of Educ. of New York, 116 F.Supp. 2d 503, 513 (S.D.N.Y. 2000) (parents claimed New York City Board of Education violated their religious and equal protection rights by refusing to grant exemption from immunization requirements and prohibiting their children from attending public school without immunization; preliminary injunction denied based on state statute that does not offer immunization exemptions based on personal beliefs). 9 Either the person who has been discriminated against or the federal Department of Justice may sue to enforce the ADA. 42 U.S.C An individual subjected to discrimination may also file a complaint with the California Department of Fair Employment and Housing to enforce the Unruh Act and CDPA. Cal. Civil Code 52(a) & (f) (remedies under the Unruh Act), 54.3(a) and 54.3(b) (remedies under the CDPA). 10 Cal. Health & Safety Code (b)(2) & (b) (child care providers must confirm and maintain evidence of children s immunization records); Cal. Code Regs., tit (e)(g), (e)(g); see Cal. Health & Safety Code , (parents must submit exemptions to the child care provider). 11 See Cal. Code Regs. tit (family child care) & (child care center).