1205emscvesida2

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

TO:	EMSC-VESID Committee
FROM:	James A. Kadamus
SUBJECT:	Proposed Amendment to Regulations of the Commissioner Relating to School Health Services
DATE:	November 21, 2005
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

The proposed amendment is submitted for adoption as an emergency measure at the December meeting of the Regents EMSC-VESID Committee. Confirmation of the proposed amendment as a permanent rule will be scheduled in February.

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.

Background Information

Included among the amendments adopted in September 2005, is 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 provides 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 has 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 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.

The Department has received a letter from Assemblyman Richard N. Gottfried, Chair of the Assembly Committee on Health, urging us not to change the amendment adopted in September that included religious exemptions for immunizations. He suggested that we should allow the regulation to operate as is and monitor the result and put more effort into educating parents about the importance and safety of vaccination.

We believe the proposed emergency amendment is necessary to immediately 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. A statement of the facts and circumstances which necessitate emergency action is attached.

A Notice of Proposed Rule Making will be 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 December 12, 2005, as an emergency action upon a finding by the Board of Regents that such action is necessary for the preservation of the general welfare in order to ensure that the Commissioner's Regulations regarding religious accommodations for school health services required under Chapter 477 of the Laws of 2004 are immediately conformed to the Regulations of the Department of Health, and thereby ensure consistency with the legislative intent of Chapter 477 of the Laws of 2004. .

Timetable for Implementation

The emergency adoption will take effect on December 12, 2005. The amendment will be submitted for adoption as a permanent rule at the February Regents meeting.

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

STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE EMERGENCY ACTION

At their September 2005 meeting, the Board of Regents adopted, effective September 29, 2005, amendments to sections 136.1, 136.2 and 136.3 of the Commissioner's Regulations to implement and otherwise conform the Commissioner's Regulations to Chapter 477 of the Laws of 2004.

Included among the amendments is 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 provides 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.

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.

Emergency action to adopt the proposed amendment is necessary for the preservation of the general welfare to immediately conform the Commissioner's Regulations, regarding religious accommodations for school health services required under Chapter 477 of the Laws of 2004, to the Regulations of the Department of Health and thereby ensure consistency with the legislative intent of Chapter 477 of the Laws of 2004.

It is anticipated that the proposed amendment will be presented to the Board of Regents for adoption as a permanent rule at their February 13-14, 2006 meeting.

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 December 12, 2005, 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 December 12, 2005, 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.