THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

 

TO:

EMSC-VESID Committee

 

FROM:

Jean C. Stevens

SUBJECT:

Proposed Amendment to Regulations of the Commissioner Relating to School Health Services and the Religious Exemption for Immunizations

 

DATE:

February 7, 2006

 

STRATEGIC GOAL:

Goals 1 and 2

 

AUTHORIZATION(S):

 

 

Summary

 

Issue for Decision

 

          Should the Regents adopt the proposed amendment of section 136.3 that conforms the Commissioner's Regulations to the regulations of the Department of Health and to Chapter 477 of the Laws of 2004?

 

Reason for Consideration

 

          Required by State statute.

 

Proposed Handling

 

This question will come before the Regents EMSC-VESID Committee in February for confirmation of the proposed amendment as a permanent rule. The proposed amendment was adopted as an emergency measure at the December meeting.

 

Procedural History

 

          In September 2005, the Committee approved a proposed amendment to sections 136.1, 136.2 and 136.3 of the Commissioner's Regulations, relating to school health services, to implement Chapter 477 of the Laws of 2004, and the Board of Regents adopted the amendment, effective September 29, 2005. 

 

In December 2005, the Committee adopted an emergency measure to amend section 136.3 to conform the Commissioner's Regulations to the regulations of the Department of Health and to Chapter 477 of the Laws of 2004.  In its deliberations, the Committee expressed serious concerns about the manner in which local districts are assessing whether parents are entitled to a statutory exemption from student immunization and health screenings under the “sincere religious belief” standard and the qualifications of school officials to make them.  Accordingly, the Regents directed staff to work with school districts, school administrators, parent representatives, the Department of Health and other stakeholders to establish guidelines for local districts to follow when assessing whether a parent/child has a “sincere religious belief” warranting an exemption.  These guidelines should fairly balance privacy rights against public health concerns.  A companion report to this item is provided to the Regents on the consultation undertaken with stakeholder groups and guidance for school districts.

 

Background Information

 

Included among the amendments adopted in September 2005, was a new section 136.3(f), which provides that no health examinations, health history, examinations for health appraisal, immunizations, screening examinations for sickle cell anemia and/or other health screenings shall be required where a student or the parent or person in parental relation to such student objects to the health services as conflicting with their genuine and sincere religious beliefs.  The new section 136.3(f) further provided that a written and signed statement from the student or the student's parents or person in parental relation that such person holds such beliefs shall be submitted to the principal or the principal's designee and shall be deemed to constitute sufficient proof of such beliefs.

 

Based on comments received from the Department of Health and others after adoption of new section 136.3(f) in September, the Department determined that the regulation conflicts with statute by including immunizations with the examinations, health histories, appraisals and screening examinations that are subject to the religious exemption language in section 136.3(f).  Chapter 477 of the Laws of 2004 amended sections 903, 904 and 905 of the Education Law to provide that examinations for a health certificate or health history or screening examinations for sickle cell anemia, vision, hearing or scoliosis shall not be required where the parent or student objects on the grounds that such examinations conflict with their genuine and sincere religious beliefs.  Chapter 477 did not add similar language to section 914 of the Education Law, which relates to immunizations and mandates that schools require proof of immunization in accordance with section 2164 of the Public Health Law.  Subdivision 9 of section 2164 of the Public Health Law contains the religious exemption language that applies to immunizations.  Under Public Health Law section 2164(9), the parent, parents or guardians may object to immunization of their child based on their genuine and sincere religious beliefs, but the student may not.  Chapter 477 of the Laws of 2004 did not amend Public Health Law section 2164(9), and therefore did not provide statutory authority for extending the religious exemption language from sections 903, 904 and 905 of the Education Law to cover immunizations.  Accordingly, the references to immunizations in section 136.3(f) need to be deleted.

 

In addition, the Department determined that the provision in section 136.3(f) that would deem submission of a signed, written statement to constitute sufficient proof of genuine and sincere religious beliefs is inconsistent with the legislative intent of Chapter 477 of the Laws of 2004.  Chapter 477 extended the legal standard for religious exemptions that applies to immunizations – a genuine and sincere religious belief – to health examinations, health histories and screening examinations.  However, requiring that school districts accept a written statement without being able to request additional documents is inconsistent with the provisions in the Regulations of the Department of Health (10 NYCRR section 66-1.3) for determining such beliefs for purposes of obtaining an exemption from the immunization requirements in Public Health Law section 2164.   

 

There is no indication in the language of Chapter 477 that religious exemptions for examinations were intended to be treated differently than religious exemptions for immunizations in this regard.  In fact, it is the Department’s understanding that the legislative intent was to have the same legal standard apply to both examinations and immunizations.  Requiring school officials to accept a written statement as conclusive proof of a conflict with genuine and sincere religious beliefs without the ability to request additional documents if necessary would not strike an appropriate balance between the State’s interest in protecting the health of children by requiring that they submit to examinations and screenings and the rights of parents and students to object to such examinations on religious grounds.  As with immunizations, school officials should have discretion to request additional documentation where needed.

 

An assessment of public comment received is attached.

 

A Notice of Proposed Rule Making was published in the State Register on December 7, 2005.  Supporting materials for the proposed amendment are available upon request from the Secretary to the Board of Regents.

 

Recommendation

 

          VOTED:  That paragraph (2) of subdivision (a) and subdivision (f) of section 136.3 of the Regulations of the Commissioner of Education be amended as submitted, effective March 9, 2006.

 

Timetable for Implementation

 

          The amendment will become a permanent rule on March 6, 2006.


AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to Education Law sections 207, 901, 902, 903, 904, 905, 906, 911, 913 and 914 and Chapter 477 of the Laws of 2004

1.  Paragraph (2) of subdivision (a) of section 136.3 of the Regulations of the Commissioner of Education is amended, effective March 9, 2006, as follows:

(2) except where otherwise prohibited by law, to advise, in writing, the parent [or guardian] of, or other persons in parental relation to, each student in whom any aspect of the total school health program indicates [a defect, disability] such student has defective sight or hearing, or a physical disability or other condition which may require professional attention with regard to health.

          2.  Subdivision (f) of section 136.3 of the Regulations of the Commissioner of Education is amended, effective March 9, 2006, as follows:

(f)  Accommodation for religious beliefs.  Notwithstanding the provisions of this section, no health examinations, health history, examinations for health appraisal, [immunizations,] screening examinations for sickle cell anemia and/or other health screenings shall be required where a student or the parent or person in parental relation to such student objects thereto on the grounds that such examinations, health history [, immunizations] and/or screenings conflict with their genuine and sincere religious beliefs.  A written and signed statement from the student or the student's parent or person in parental relation that such person holds such beliefs shall be submitted to the principal or the principal's designee [and shall be deemed to constitute sufficient proof of such beliefs] , in which case the principal or principal's designee may require supporting documents.

PROPOSED AMENDMENT TO SECTION 136.3 OF THE REGULATIONS OF THE COMISSIONER OF EDUCATION PURSUANT TO EDUCATION LAW SECTIONS 207, 901, 902, 903, 904, 905, 906, 911, 913, 914 AND CHAPTER 477 OF THE LAWS OF 2004, RELATING TO SCHOOL HEALTH SERVICES

ASSESSMENT OF PUBLIC COMMENT

          Since publication of a Notice of Proposed Rule Making in the State Register on December 7, 2005, the State Education Department received the following public comment.

1. COMMENT:

          A recommendation was received to restore the previous September 29, 2005 regulation in order to protect families’ privacy and prevent them from being subjected to intrusive inquiries regarding the nature of their religious beliefs.  A written statement from the parent or guardian that he or she holds sincere and genuine religious beliefs which are contrary to immunization should be accepted without further inquiry. 

DEPARTMENT RESPONSE:

Based on comments received from the Department of Health and others after adoption of new section 136.3(f) in September, the Department has determined that the prior regulation that was in effect from September 29, 2005 through December 11, 2005 conflicted with statute by including immunizations with the examinations, health histories, appraisals and screening examinations that are subject to the religious exemption language in section 136.3(f).  Chapter 477 of the Laws of 2004 amended sections 903, 904 and 905 of the Education Law to provide that examinations for a health certificate or health history or screening examinations for sickle cell anemia, vision, hearing or scoliosis shall not be required where the parent or student objects on the grounds that such examinations conflict with their genuine and sincere religious beliefs.  Chapter 477 did not add similar language to section 914 of the Education Law, which relates to immunizations and mandates that schools require proof of immunization in accordance with section 2164 of the Public Health Law.  Subdivision 9 of section 2164 of the Public Health Law contains the religious exemption language that applies to immunizations.  Under Public Health Law section 2164(9), the parent, parents or guardians may object to immunization of their child based on their genuine and sincere religious beliefs, but the student may not.  Chapter 477 of the Laws of 2004 did not amend Public Health Law section 2164(9), and therefore did not provide statutory authority for extending the religious exemption language from sections 903, 904 and 905 of the Education Law to cover immunizations.  Accordingly, the proposed amendment, which was adopted by emergency action effective December 12, 2005, deletes references to immunizations in section 136.3(f).

In addition, the Department has determined that the provision in section 136.3(f) that would deem submission of a signed, written statement to constitute sufficient proof of genuine and sincere religious beliefs is inconsistent with the Legislative intent of Chapter 477 of the Laws of 2004.  Chapter 477 extended the legal standard for religious exemptions that applies to immunizations – a genuine and sincere religious belief – to health examinations, health histories and screening examinations.  However, requiring that school districts accept a written statement without being able to question the sincerity of the parent’s and student’s religious beliefs is inconsistent with the provisions in the Regulations of the Department of Health (10 NYCRR section 66-1.3), and established decisional case law, for determining such beliefs for purposes of obtaining an exemption from the immunization requirements in Public Health Law section 2164.   

There is no indication in the language of Chapter 477 that religious exemptions for examinations were intended to be treated differently than religious exemptions for immunizations in this regard.  In fact, it is the Department’s understanding that the legislative intent was to have the same legal standard apply to both examinations and immunizations.  Requiring school officials to accept a written statement as proof of a conflict with genuine and sincere religious beliefs without the ability to request additional proof of the sincerity of those religious beliefs, would not strike an appropriate balance between the state’s interest in protecting the health of children by requiring that they submit to examinations and screenings and the rights of parents and students to object to such examinations on religious grounds.  As with immunizations, school officials should have discretion to question the sincerity of the religious beliefs asserted by the student or parent, and to deny exemptions where the request is not based on religion but merely on personal preference.

Therefore, the proposed amendment is necessary to conform the Commissioner's Regulations to the Regulations of the Department of Health and thereby ensure consistency with the legislative intent of Chapter 477 of the Laws of 2004, and restoration of the September 29, 2005 regulation is neither feasible nor appropriate.

2.  COMMENT:

The proposed amendment of section 136.3 would leave school districts to interpret how to implement the provisions of the religious exemption to the immunization law.  A concern was raised that some districts have been overreaching in their inquiries into religious beliefs of families, thus violating First Amendment rights to freedom of religion.

If the December emergency amendment is adopted as a permanent rule at the February Regents meeting, then it was recommended to incorporate consistent requirements for districts to follow in order to judiciously implement requests for religious exemptions to immunization requirements.  These include: prohibiting questions regarding family heath care history, change of religious beliefs, religious affiliation and non-religious beliefs; establishing standards of education and training to qualify school officials to review and implement exemption requests; and establishing an appeal procedure for family use when religious exemptions are denied.  There should also be requirements relating to the process for determining whether a person's asserted religious belief is sincere and genuine, including the standard of proof and burden of proof.

DEPARTMENT RESPONSE:

These concerns can be more appropriately addressed in guidance to be issued by the Department.  In order to ensure consistent implementation, the Department will provide a field memo to school districts that contains guidance on how to implement requests for religious exemption to immunization law.

3.  COMMENT: 

Concern was expressed regarding the effect of the previous amendment to section 136.3, which was in effect from September 29, 2005 through December 11, 2005, on requests for religious exemptions that were denied prior to September 29, 2005.  It was recommended that if an applicant’s request for a religious exemption was denied prior to September 29, 2005 that applicant may not be allowed to resubmit the same exemption request during the September 29, 2005 through December 11, 2005 time frame.

DEPARTMENT RESPONSE: 

The proposed amendment does not address the applicability of the provisions of section 136.3 that were in effect during the September 29, 2005 through December 11, 2005 timeframe to requests and/or determinations regarding religious exemptions made before September 29, 2005.  Issues concerning applicability can be more appropriately addressed in guidance to be issued by the Department.  In order to ensure consistent implementation, the Department will provide a field memo to school districts that contains guidance on how to implement requests for religious exemption to immunization law.

4.  COMMENT:

          The designated individual in the school who is responsible for deciding whether to approve a religious exemption should be the building principal and not the school nurse.  The role of the school nurse is to educate parents about the importance of immunization.

DEPARTMENT RESPONSE:

          The proposed amendment does not specify that the designee must be the school nurse.   Generally speaking, the appropriateness of particular designees is best left to local school authorities to reasonably determine.

5.  COMMENT:

Schools need guidance about how the religious exemption from immunization impacts sports participation.

DEPARTMENT RESPONSE:

          Issues concerning the effect of religious exemptions from immunization on school district sports participation are beyond the scope of the proposed rule making which is intended to merely conform the Commissioner's Regulations regarding religious exemptions for immunizations and other school health services to the regulations of the Department of Health, consistent with the legislative intent of Chapter 477 of the Laws of 2004.  At present, there are no plans to issue formal guidance concerning these types of issues.  However, Department staff can provide assistance to school authorities inquiring about a specific situation or set of circumstances, where appropriate.