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
________________________________________________________________________
4767
2021-2022 Regular Sessions
IN ASSEMBLY
February 8, 2021
___________
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.
LBD02252-01-1
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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 a 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 35 of the laws of 2019, 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 or where the parent, guardian,
19 or any other person in parental relationship to such child can demon-
20 strate that a child has received at least the first dose in each immuni-
21 zation series required by this section and has age appropriate appoint-
22 ments scheduled to complete the immunization series according to the
23 Advisory Committee on Immunization Practices Recommended Immunization
24 Schedules for Persons Aged 0 through 18 Years.
25 (b) A parent, a guardian or any other person in parental relationship
26 to a child denied school entrance or attendance may appeal by petition
27 to the commissioner of education in accordance with the provisions of
28 section three hundred ten of the education law] A child who lacks
29 certification of immunization may be excluded from school only if such
30 child lacks an immunization for which there is an active case of a
31 disease in that child's school that the immunization is intended to
32 prevent and the department or local health authority has declared an
33 outbreak of that disease for an area that includes such child's school.
34 The department or local department of health shall notify the proper
35 school administrator responsible for excluding such child from school
36 attendance under this subdivision.
37 § 3. Subdivision 7 of section 2164 of the public health law, as
38 amended by chapter 401 of the laws of 2015, is amended to read as
39 follows:
40 7. [(a) No principal, teacher, owner or person in charge of a school
41 shall permit any child to be admitted to such school, or to attend such
42 school, in excess of fourteen days, without the certificate provided for
43 in subdivision five of this section or some other acceptable evidence of
44 the child's immunization against poliomyelitis, mumps, measles, diphthe-
45 ria, rubella, varicella, hepatitis B, pertussis, tetanus, and, where
46 applicable, Haemophilus influenzae type b (Hib), meningococcal disease,
47 and pneumococcal disease; provided, however, such fourteen day period
48 may be extended to not more than thirty days for an individual student
49 by the appropriate principal, teacher, owner or other person in charge
50 where such student is transferring from out-of-state or from another
51 country and can show a good faith effort to get the necessary certif-
52 ication or other evidence of immunization.
53 (b) A parent, a guardian or any other person in parental relationship
54 to a child denied school entrance or attendance may appeal by petition
55 to the commissioner of education in accordance with the provisions of
56 section three hundred ten of the education law] A child who lacks
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1 certification of immunization may be excluded from school only if such
2 child lacks an immunization for which there is an active case of a
3 disease in that child's school that the immunization is intended to
4 prevent and the department or local health authority has declared an
5 outbreak of that disease for an area that includes such child's school.
6 The department or local department of health shall notify the proper
7 school administrator responsible for excluding such child from school
8 attendance under this subdivision.
9 § 4. Subdivisions 8 and 8-a of section 2164 of the public health law,
10 as amended by chapter 401 of the laws of 2015, are amended and a new
11 subdivision 9 is added to read as follows:
12 8. If any physician licensed to practice medicine in this state certi-
13 fies that any such immunization may be detrimental to a child's health,
14 [the requirements of this section shall be inapplicable until such
15 immunization is found no longer to be detrimental to the child's health]
16 such physician shall give a certificate stating which immunization may
17 be detrimental to a child's health to the person in parental relation to
18 such child. The person in parental relation to such child shall submit
19 such certificate to such child's school to be placed in the child's
20 school record to verify such child has not received such immunization if
21 an outbreak described in subdivision seven of this section occurs.
22 8-a. Whenever a child has [been refused admission to, or continued
23 attendance at, a school as provided for in subdivision seven of this
24 section because there exists] no certificate of immunization provided
25 for in subdivision five of this section or other acceptable evidence of
26 the child's immunization against poliomyelitis, mumps, measles, diphthe-
27 ria, rubella, varicella, hepatitis B, pertussis, tetanus, and, where
28 applicable, Haemophilus influenzae type b (Hib), meningococcal disease,
29 and pneumococcal disease, the principal, teacher, owner or person in
30 charge of the school shall:
31 a. forward a report of [such exclusion and] the name and address of
32 such child who have completed the recommended immunizations or have
33 submitted a certificate stating immunization may be detrimental to such
34 child's health to the local health authority and to the [person in
35 parental relation to the child together with a notification of the
36 responsibility of such person under subdivision two of this section and
37 a form of consent as prescribed by regulation of the commissioner]
38 department, and
39 b. [provide, with the cooperation of the appropriate local health
40 authority, for a time and place at which an immunizing agent or agents
41 shall be administered, as required by subdivision two of this section,
42 to a child for whom a consent has been obtained. Upon failure of a local
43 health authority to cooperate in arranging for a time and place at which
44 an immunizing agent or agents shall be administered as required by
45 subdivision two of this section, the commissioner shall arrange for such
46 administration and may recover the cost thereof from the amount of state
47 aid to which the local health authority would otherwise be entitled]
48 forward a report of the name and address of such child who have not
49 completed the recommended immunizations and has filed the required form,
50 pursuant to subdivision six of this section, to the local health author-
51 ity and to the department.
52 9. A school and its employees are immune from civil liability for
53 decisions concerning admitting and excluding a child that are based on a
54 good faith implementation of the requirements of subdivision seven of
55 this section.
56 § 5. Subdivision 6-a of section 310 of the education law is REPEALED.
A. 4767 5
1 § 6. Subparagraph 1 of paragraph (b) of subdivision 5 of section 3208
2 of the education law, as amended by chapter 352 of the laws of 2005, is
3 amended to read as follows:
4 (1) A physical examination pursuant to the provisions of sections nine
5 hundred one, nine hundred three and nine hundred four of this chapter[,
6 including proof of immunization as required by section twenty-one
7 hundred sixty-four of the public health law].
8 § 7. Subdivision 3 of section 3304 of the education law, as added by
9 section 1 of part A of chapter 328 of the laws of 2014, is amended to
10 read as follows:
11 3. [Notwithstanding any provisions of subdivision seven of section
12 twenty-one hundred sixty-four of the public health law to the contrary,
13 compacting] Compacting states shall give thirty days from the date of
14 enrollment or within such time as is reasonably determined under the
15 rules promulgated by the interstate commission, for students trans-
16 ferring from a school in a sending state to obtain any immunizations
17 [required] recommended by the receiving state. [For a series of immuni-
18 zations, initial vaccinations must be obtained within thirty days or
19 within such time as is reasonably determined under the rules promulgated
20 by the interstate commission.]
21 § 8. Paragraph (l) of subdivision 1 of section 206 of the public
22 health law, as added by chapter 207 of the laws of 2004, is amended to
23 read as follows:
24 (l) establish and operate such adult and child immunization programs
25 as are necessary to prevent or minimize the spread of disease and to
26 protect the public health. Such programs may include the purchase and
27 distribution of vaccines to providers and municipalities, the operation
28 of public immunization programs, quality assurance for immunization
29 related activities and other immunization related activities. The
30 commissioner may promulgate such regulations as are necessary for the
31 implementation of this paragraph. Nothing in this paragraph shall
32 authorize mandatory immunization of adults or children[, except as
33 provided in sections twenty-one hundred sixty-four and twenty-one
34 hundred sixty-five of this chapter].
35 § 9. Paragraph (c) of subdivision 1 and subdivision 2 of section 613
36 of the public health law, paragraph (c) of subdivision 1 as amended by
37 section 24 of part E of chapter 56 of the laws of 2013, subdivision 2 as
38 amended by chapter 538 of the laws of 1989, are amended to read as
39 follows:
40 (c) The commissioner shall invite and encourage the active assistance
41 and cooperation in such education activities of: the medical societies,
42 organizations of other licensed health personnel, hospitals, corpo-
43 rations subject to article forty-three of the insurance law, trade
44 unions, trade associations, parents and teachers and their associations,
45 organizations of child care resource and referral agencies, the media of
46 mass communication, and such other voluntary groups and organizations of
47 citizens as he or she shall deem appropriate. The public health and
48 health planning council, the department of education, the department of
49 family assistance, and the department of mental hygiene shall provide
50 the commissioner with such assistance in carrying out the program as he
51 or she shall request. All other state agencies shall also render such
52 assistance as the commissioner may reasonably require for this program.
53 Nothing in this subdivision shall authorize mandatory immunization of
54 adults or children[, except as provided in sections twenty-one hundred
55 sixty-four and twenty-one hundred sixty-five of this chapter].
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1 2. The commissioner shall set such standards as he or she shall deem
2 necessary for the proper, safe, and efficient administration of the
3 program. He or she shall direct an annual survey to determine the immun-
4 ization level of children entering school, and shall conduct annually an
5 audit of such survey and an audit of the immunization level of children
6 attending school. State aid provided by this article shall be reduced by
7 ten percent, provided however that state aid for essential public health
8 activities shall not be reduced, unless a municipality has submitted, in
9 cooperation with local school districts, a plan within ninety days after
10 the commissioner shall have certified to such municipality the results
11 of his survey of the immunization level of children entering schools in
12 such local school districts. Such plan shall be submitted for the next
13 ensuing school year and a subsequent plan shall be submitted annually
14 thereafter [for assuring that immunizing agents are administered to
15 pre-school children within a reasonable time prior to but, in any event,
16 no later than their entrance into school, and to students generally, as
17 required pursuant to section twenty-one hundred sixty-four of this chap-
18 ter]. Such plan shall include the manner in which immunization activ-
19 ities are coordinated among the local health authority and the school
20 districts. Such reduction in state aid and the requirement that a muni-
21 cipality submit an immunization plan shall not be applicable to any
22 municipality where ninety percent or more of its children entering
23 school are immunized. The determination of the percentage of immuniza-
24 tion shall be made by the commissioner based upon his audit of immuniza-
25 tion surveys.
26 § 10. Paragraph (f) of subdivision 5 of section 2168 of the public
27 health law, as amended by chapter 35 of the laws of 2019, is amended to
28 read as follows:
29 (f) The immunization status of [children exempt from immunizations] a
30 child who acquires a certificate stating immunization may be detrimental
31 to such child's health pursuant to subdivision eight of section twenty-
32 one hundred sixty-four of this title shall be reported by the health
33 care provider.
34 § 11. This act shall take effect on the ninetieth day after it shall
35 have become a law; provided, however, that the amendments to subdivision
36 7 of section 2164 of the public health law made by section two of this
37 act shall be subject to the expiration and reversion of such subdivision
38 pursuant to section 4 of chapter 35 of the laws of 2019 when upon such
39 date the provisions of section three of this act shall take effect; and
40 provided further, that the amendments to subparagraph 1 of paragraph (b)
41 of subdivision 5 of section 3208 of the education law made by section
42 six of this act shall not affect the expiration of such section and
43 shall be deemed to expire therewith.