Amd §§2164, 206, 613 & 2168, Pub Health L; rpld §310 sub 6-a, amd §§3208 & 3304, Ed L
Allows persons in parental relation to a child to choose to immunize such child and requires a person to submit a form to such child's school when such person wishes not to administer an immunization to such child.
STATE OF NEW YORK
________________________________________________________________________
6041
2023-2024 Regular Sessions
IN ASSEMBLY
March 31, 2023
___________
Introduced by M. of A. DiPIETRO -- read once and referred to the Commit-
tee on Health
AN ACT to amend the public health law, in relation to allowing persons
in parental relation to a child to choose to immunize such child; to
amend the education law, in relation to making changes relating there-
to; and to repeal subdivision 6-a of section 310 of the education law
relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 2, 3, 5 and 6 of section 2164 of the public
2 health law, subdivisions 2, 3, and 5 as amended by chapter 401 of the
3 laws of 2015, subdivision 6 as amended by chapter 35 of the laws of
4 2019, are amended to read as follows:
5 2. [a.] Every person in parental relation to a child in this state
6 shall have the choice to have administered to such child an adequate
7 dose or doses of an immunizing agent against poliomyelitis, mumps,
8 measles, diphtheria, rubella, varicella, Haemophilus influenzae type b
9 (Hib), pertussis, tetanus, pneumococcal disease, and hepatitis B, which
10 meets the standards approved by the United States public health service
11 for such biological products, and which is approved by the department
12 under such conditions as may be specified by the public health council.
13 [b. Every person in parental relation to a child in this state born on
14 or after January first, nineteen hundred ninety-four and entering sixth
15 grade or a comparable age level special education program with an unas-
16 signed grade on or after September first, two thousand seven, shall have
17 administered to such child a booster immunization containing diphtheria
18 and tetanus toxoids, and an acellular pertussis vaccine, which meets the
19 standards approved by the United States public health service for such
20 biological products, and which is approved by the department under such
21 conditions as may be specified by the public health council.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06808-01-3
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1 c. Every person in parental relation to a child in this state entering
2 or having entered seventh grade and twelfth grade or a comparable age
3 level special education program with an unassigned grade on or after
4 September first, two thousand sixteen, shall have administered to such
5 child an adequate dose or doses of immunizing agents against meningococ-
6 cal disease as recommended by the advisory committee on immunization
7 practices of the centers for disease control and prevention, which meets
8 the standards approved by the United States public health service for
9 such biological products, and which is approved by the department under
10 such conditions as may be specified by the public health and planning
11 council.]
12 3. The person in parental relation to any such child who has not
13 previously [received] chosen for such child to receive such immunization
14 shall present the child to a health practitioner and request such health
15 practitioner to administer the [necessary] immunization against poliom-
16 yelitis, mumps, measles, diphtheria, Haemophilus influenzae type b
17 (Hib), rubella, varicella, pertussis, tetanus, pneumococcal disease,
18 meningococcal disease, and hepatitis B as provided in subdivision two of
19 this section.
20 5. The health practitioner who administers such immunizing agent
21 against poliomyelitis, mumps, measles, diphtheria, Haemophilus influen-
22 zae type b (Hib), rubella, varicella, pertussis, tetanus, pneumococcal
23 disease, meningococcal disease, and hepatitis B to any such child shall
24 give a certificate of such immunization to the person in parental
25 relation to such child. If any person in parental relation to such child
26 chooses to have administered such immunization, such person shall submit
27 a certificate of such immunization to the school to verify that such
28 child has received the recommended immunization if an outbreak described
29 in subdivision seven of this section occurs.
30 6. [In the event that a person in parental relation to a child makes
31 application for admission of such child to a school or has a child
32 attending school and there exists no certificate or other acceptable
33 evidence of the child's immunization against poliomyelitis, mumps,
34 measles, diphtheria, rubella, varicella, hepatitis B, pertussis, teta-
35 nus, and, where applicable, Haemophilus influenzae type b (Hib), menin-
36 gococcal disease, and pneumococcal disease, the principal, teacher,
37 owner or person in charge of the school shall inform such person of the
38 necessity to have the child immunized, that such immunization may be
39 administered by any health practitioner, or that the child may be immun-
40 ized without charge by the health officer in the county where the child
41 resides, if such person executes a consent therefor] No school shall
42 require a child to receive immunization against poliomyelitis, mumps,
43 measles, diphtheria, Haemophilus influenzae type b (Hib), rubella, vari-
44 cella, pertussis, tetanus, pneumococcal disease, meningococcal disease,
45 or hepatitis B prior to being admitted or penalize a child because such
46 child has not received the recommended immunizations. In the event that
47 such person does not wish to [select a health practitioner to administer
48 the] have such child administered with an immunization, he or she shall
49 be provided with a form [which shall give notice that as a prerequisite
50 to processing the application for admission to, or for continued attend-
51 ance at, the school such person shall state a valid reason for withhold-
52 ing consent or consent shall be given for immunization to be adminis-
53 tered by a health officer in the public employ, or by a school physician
54 or nurse] to fill out stating such person's choice not to have such
55 child administered with the immunization. [The form shall provide for
56 the execution of a consent by such person and it shall also state that
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1 such person need not execute such consent if subdivision eight of this
2 section applies to such child.]
3 § 2. Subdivision 7 of section 2164 of the public health law, as
4 amended by chapter 401 of the laws of 2015, is amended to read as
5 follows:
6 7. [(a) No principal, teacher, owner or person in charge of a school
7 shall permit any child to be admitted to such school, or to attend such
8 school, in excess of fourteen days, without the certificate provided for
9 in subdivision five of this section or some other acceptable evidence of
10 the child's immunization against poliomyelitis, mumps, measles, diphthe-
11 ria, rubella, varicella, hepatitis B, pertussis, tetanus, and, where
12 applicable, Haemophilus influenzae type b (Hib), meningococcal disease,
13 and pneumococcal disease; provided, however, such fourteen day period
14 may be extended to not more than thirty days for an individual student
15 by the appropriate principal, teacher, owner or other person in charge
16 where such student is transferring from out-of-state or from another
17 country and can show a good faith effort to get the necessary certif-
18 ication or other evidence of immunization.
19 (b) A parent, a guardian or any other person in parental relationship
20 to a child denied school entrance or attendance may appeal by petition
21 to the commissioner of education in accordance with the provisions of
22 section three hundred ten of the education law] A child who lacks
23 certification of immunization may be excluded from school only if such
24 child lacks an immunization for which there is an active case of a
25 disease in that child's school that the immunization is intended to
26 prevent and the department or local health authority has declared an
27 outbreak of that disease for an area that includes such child's school.
28 The department or local department of health shall notify the proper
29 school administrator responsible for excluding such child from school
30 attendance under this subdivision.
31 § 3. Subdivisions 8 and 8-a of section 2164 of the public health law,
32 as amended by chapter 401 of the laws of 2015, are amended and a new
33 subdivision 9 is added to read as follows:
34 8. If any physician licensed to practice medicine in this state certi-
35 fies that any such immunization may be detrimental to a child's health,
36 [the requirements of this section shall be inapplicable until such
37 immunization is found no longer to be detrimental to the child's health]
38 such physician shall give a certificate stating which immunization may
39 be detrimental to a child's health to the person in parental relation to
40 such child. The person in parental relation to such child shall submit
41 such certificate to such child's school to be placed in the child's
42 school record to verify such child has not received such immunization if
43 an outbreak described in subdivision seven of this section occurs.
44 8-a. Whenever a child has [been refused admission to, or continued
45 attendance at, a school as provided for in subdivision seven of this
46 section because there exists] no certificate of immunization provided
47 for in subdivision five of this section or other acceptable evidence of
48 the child's immunization against poliomyelitis, mumps, measles, diphthe-
49 ria, rubella, varicella, hepatitis B, pertussis, tetanus, and, where
50 applicable, Haemophilus influenzae type b (Hib), meningococcal disease,
51 and pneumococcal disease, the principal, teacher, owner or person in
52 charge of the school shall:
53 a. forward a report of [such exclusion and] the name and address of
54 such child who has completed the recommended immunizations or has
55 submitted a certificate stating immunization may be detrimental to such
56 child's health to the local health authority and to the [person in
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1 parental relation to the child together with a notification of the
2 responsibility of such person under subdivision two of this section and
3 a form of consent as prescribed by regulation of the commissioner]
4 department, and
5 b. [provide, with the cooperation of the appropriate local health
6 authority, for a time and place at which an immunizing agent or agents
7 shall be administered, as required by subdivision two of this section,
8 to a child for whom a consent has been obtained. Upon failure of a local
9 health authority to cooperate in arranging for a time and place at which
10 an immunizing agent or agents shall be administered as required by
11 subdivision two of this section, the commissioner shall arrange for such
12 administration and may recover the cost thereof from the amount of state
13 aid to which the local health authority would otherwise be entitled]
14 forward a report of the name and address of such child who has not
15 completed the recommended immunizations and has filed the required form,
16 pursuant to subdivision six of this section, to the local health author-
17 ity and to the department.
18 9. A school and its employees are immune from civil liability for
19 decisions concerning admitting and excluding a child that are based on a
20 good faith implementation of the requirements of subdivision seven of
21 this section.
22 § 4. Subdivision 6-a of section 310 of the education law is REPEALED.
23 § 5. Subparagraph 1 of paragraph (b) of subdivision 5 of section 3208
24 of the education law, as amended by chapter 352 of the laws of 2005, is
25 amended to read as follows:
26 (1) A physical examination pursuant to the provisions of sections nine
27 hundred one, nine hundred three and nine hundred four of this chapter[,
28 including proof of immunization as required by section twenty-one
29 hundred sixty-four of the public health law].
30 § 6. Subdivision 3 of section 3304 of the education law, as added by
31 section 1 of part A of chapter 328 of the laws of 2014, is amended to
32 read as follows:
33 3. [Notwithstanding any provisions of subdivision seven of section
34 twenty-one hundred sixty-four of the public health law to the contrary,
35 compacting] Compacting states shall give thirty days from the date of
36 enrollment or within such time as is reasonably determined under the
37 rules promulgated by the interstate commission, for students trans-
38 ferring from a school in a sending state to obtain any immunizations
39 [required] recommended by the receiving state. [For a series of immuni-
40 zations, initial vaccinations must be obtained within thirty days or
41 within such time as is reasonably determined under the rules promulgated
42 by the interstate commission.]
43 § 7. Paragraph (l) of subdivision 1 of section 206 of the public
44 health law, as added by chapter 207 of the laws of 2004, is amended to
45 read as follows:
46 (l) establish and operate such adult and child immunization programs
47 as are necessary to prevent or minimize the spread of disease and to
48 protect the public health. Such programs may include the purchase and
49 distribution of vaccines to providers and municipalities, the operation
50 of public immunization programs, quality assurance for immunization
51 related activities and other immunization related activities. The
52 commissioner may promulgate such regulations as are necessary for the
53 implementation of this paragraph. Nothing in this paragraph shall
54 authorize mandatory immunization of adults or children[, except as
55 provided in sections twenty-one hundred sixty-four and twenty-one
56 hundred sixty-five of this chapter].
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1 § 8. Paragraph (c) of subdivision 1 and subdivision 2 of section 613
2 of the public health law, paragraph (c) of subdivision 1 as amended by
3 section 24 of part E of chapter 56 of the laws of 2013, subdivision 2 as
4 amended by chapter 538 of the laws of 1989, are amended to read as
5 follows:
6 (c) The commissioner shall invite and encourage the active assistance
7 and cooperation in such education activities of: the medical societies,
8 organizations of other licensed health personnel, hospitals, corpo-
9 rations subject to article forty-three of the insurance law, trade
10 unions, trade associations, parents and teachers and their associations,
11 organizations of child care resource and referral agencies, the media of
12 mass communication, and such other voluntary groups and organizations of
13 citizens as he or she shall deem appropriate. The public health and
14 health planning council, the department of education, the department of
15 family assistance, and the department of mental hygiene shall provide
16 the commissioner with such assistance in carrying out the program as he
17 or she shall request. All other state agencies shall also render such
18 assistance as the commissioner may reasonably require for this program.
19 Nothing in this subdivision shall authorize mandatory immunization of
20 adults or children[, except as provided in sections twenty-one hundred
21 sixty-four and twenty-one hundred sixty-five of this chapter].
22 2. The commissioner shall set such standards as he or she shall deem
23 necessary for the proper, safe, and efficient administration of the
24 program. He or she shall direct an annual survey to determine the immun-
25 ization level of children entering school, and shall conduct annually an
26 audit of such survey and an audit of the immunization level of children
27 attending school. State aid provided by this article shall be reduced by
28 ten percent, provided however that state aid for essential public health
29 activities shall not be reduced, unless a municipality has submitted, in
30 cooperation with local school districts, a plan within ninety days after
31 the commissioner shall have certified to such municipality the results
32 of his or her survey of the immunization level of children entering
33 schools in such local school districts. Such plan shall be submitted for
34 the next ensuing school year and a subsequent plan shall be submitted
35 annually thereafter [for assuring that immunizing agents are adminis-
36 tered to pre-school children within a reasonable time prior to but, in
37 any event, no later than their entrance into school, and to students
38 generally, as required pursuant to section twenty-one hundred sixty-four
39 of this chapter]. Such plan shall include the manner in which immuniza-
40 tion activities are coordinated among the local health authority and the
41 school districts. Such reduction in state aid and the requirement that a
42 municipality submit an immunization plan shall not be applicable to any
43 municipality where ninety percent or more of its children entering
44 school are immunized. The determination of the percentage of immuniza-
45 tion shall be made by the commissioner based upon his or her audit of
46 immunization surveys.
47 § 9. Paragraph (f) of subdivision 5 of section 2168 of the public
48 health law, as amended by chapter 35 of the laws of 2019, is amended to
49 read as follows:
50 (f) The immunization status of [children exempt from immunizations] a
51 child who acquires a certificate stating immunization may be detrimental
52 to such child's health pursuant to subdivision eight of section twenty-
53 one hundred sixty-four of this title shall be reported by the health
54 care provider.
55 § 10. This act shall take effect on the ninetieth day after it shall
56 have become a law; provided, however, that the amendments to subpara-
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1 graph 1 of paragraph (b) of subdivision 5 of section 3208 of the educa-
2 tion law made by section five of this act shall not affect the expira-
3 tion of such section and shall be deemed to expire therewith.
