MISSISSIPPI LEGISLATURE
2010 Regular Session
To: Public Health and Human Services; Education
By: Representative Horne
AN ACT TO AMEND SECTION 41-23-37, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A LOCAL HEALTH OFFICER MAY GRANT A CERTIFICATE OF EXEMPTION FROM IMMUNIZATION FOR ANY CHILD WHOSE LEGAL PARENT(S) OR GUARDIAN(S) FIRMLY HOLD A BONA FIDE BELIEF THAT A VACCINE OR IMMUNIZATION IS INAPPROPRIATE FOR THE CHILD; TO PROVIDE THAT CHILDREN MAY NOT ATTEND SCHOOL UNLESS THEY HAVE A CERTIFICATE OF IMMUNIZATION OR A CERTIFICATE OF EXEMPTION; TO PROVIDE THAT A LOCAL HEALTH OFFICER OR PHYSICIAN MAY PROVIDE A CERTIFICATE OF IMMUNIZATION FOR ANY CHILD WHO HAS BEEN AGE APPROPRIATELY IMMUNIZED AGAINST, OR DEMONSTRATES SEROLOGIC OR OTHER SUFFICIENT EVIDENCE TO ESTABLISH IMMUNITY FROM, CERTAIN SPECIFIED DISEASES AND OTHER DISEASES AS DESIGNATED BY THE STATE HEALTH OFFICER; TO PROVIDE THAT A LOCAL HEALTH OFFICER MAY GRANT A CERTIFICATE OF EXEMPTION FROM IMMUNIZATION FOR ANY CHILD WHO, IN THE OPINION OF A PHYSICIAN, SUFFERS FROM A PHYSICAL CONDITION RECOGNIZED AS A CONTRA-INDICATION FOR THE ADMINISTRATION OF A VACCINE AND IS AT INCREASED RISK FROM SERIOUS COMPLICATIONS FROM THE ADMINISTRATION OF THE VACCINE RELATIVE TO A TYPICAL OR HEALTHY CHILD FOR WHOM THE VACCINATION PROTOCOL HAS BEEN ESTABLISHED; TO SPECIFY THE FACTORS THAT THE LOCAL HEALTH OFFICER MUST CONSIDER IN DETERMINING WHETHER THE PARENT(S) OR GUARDIAN(S) OF A CHILD FIRMLY HOLD THAT TYPE OF BELIEF; TO AMEND SECTION 37-13-91, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT SCHOOL ADMINISTRATORS, WHEN THERE IS AN OCCURRENCE OF A COMMUNICABLE DISEASE OR CONDITION AT A SCHOOL THAT REQUIRES THE REMOVAL OF UNVACCINATED CHILDREN FROM SCHOOL, SHALL EXCLUDE FROM ATTENDANCE ANY CHILDREN WHO ARE NOT VACCINATED AGAINST THAT DISEASE OR CONDITION FOR THE PERIOD OF TIME NECESSARY TO PROTECT THEIR HEALTH AND THAT OF THE PUBLIC; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 41-23-37, Mississippi Code of 1972, is amended as follows:
41-23-37. (1) Whenever indicated, the State Health Officer shall specify such immunization practices as may be considered best for the control of vaccine preventable diseases. A listing shall be promulgated annually or more often, if necessary.
(2) Except as provided hereinafter, it shall be unlawful for any child to attend any school, kindergarten or similar type facility intended for the instruction of children (hereinafter called "schools"), either public or private, with the exception of any legitimate home instruction program, as defined in Section 37-13-91 for ten (10) or fewer children who are related within the third degree computed according to the civil law to the operator, unless they have a certificate of immunization or a certificate of exemption.
(3) A local health officer or physician licensed to practice medicine in Mississippi may provide a "certificate of immunization" for any child who has been age appropriately immunized against, or demonstrates serologic or other evidence sufficient in the opinion of the State Health Officer to establish immunity from, poliomyelitis, diphtheria, tetanus, pertussis, red (rubeola) measles, rubella, and any other diseases as designated by the State Health Officer. The certificate must be witnessed and identify the child, the vaccines administered, the dates of vaccine administration, the name and address of the health officer or physician so certifying and the name, address and signature of at least one witness.
(4) (a) A local health officer may, upon application of a parent or guardian of a child, grant a certificate of exemption from immunization (a "certificate of exemption") for any child:
(i) Who, in the opinion of a physician licensed to practice medicine in Mississippi, suffers from a physical condition recognized in pediatric practice as a contra-indication for the administration of a vaccine and is, in the physician's professional judgment, at increased risk from serious complications from the administration of the vaccine relative to a typical or healthy child for whom the vaccination protocol has been established; or
(ii) Whose legal parent(s) or guardian(s) firmly hold a bona fide belief that a vaccine or immunization is inappropriate for the child.
(b) In determining whether the parent(s) or guardian(s) of a child firmly hold a bona fide belief that a vaccine or immunization is inappropriate for the child, the local health officer shall take the following into consideration:
(i) Whether the parent(s) or guardian(s) present signed documentation from a physician licensed to practice medicine in Mississippi or other individual designated by the State Health Officer that the parent(s) or guardian(s) have received individual counseling concerning the risks and benefits of vaccination to the child and to public health; and
(ii) Whether the parent(s) or guardian(s) furnish a signed, personal statement explaining the reasons for requesting the certificate of exemption, setting forth the strength and duration of their belief that a vaccination or immunization is inappropriate for the child, demonstrating their understanding of the risks and benefits of vaccination to the child and to public health and acknowledging that the child may be removed from school in the event of the occurrence of any communicable disease or condition, or threat of communicable disease or condition, that in the opinion of the State Health Officer or local health officer requires the removal of unvaccinated children from school.
(c) Upon failure to fulfill any one (1) of the criteria set forth in paragraph (b) of this subsection, the local health officer shall decline to issue a certificate of exemption under paragraph (a)(ii) of this subsection.
(d) Before issuing a certificate of exemption under paragraph (a)(ii) of this subsection, a local health officer also shall consider:
(i) Applicable vaccination rates;
(ii) The community's vulnerability to outbreaks of vaccine-preventable disease; and
(iii) The prevalence of vaccine-preventable disease circulating within the jurisdiction;
and may decline to issue a certificate of exemption for the protection of the child's or the public's health.
(e) A certificate of exemption shall expire twelve (12) months from its date of issuance, but may be renewed in accordance with the provisions of this section. If there is a change in the circumstances underlying the local health officer's issuance of a certificate, the certificate may be revoked.
(f) The State Health Officer shall provide annually to the superintendent of schools of each school district, at the start of each school year, a registry of the children who have received certificates of exemption. This registry shall be updated as certificates expire, are revoked or are issued.
(5) Certificates of immunization shall be issued by local health officers or physicians on forms specified by the Mississippi State Board of Health. These forms shall be the only acceptable means for showing compliance with the immunization requirements of this section, and the responsible school officials shall file the form with the child's record.
(6) If a child * * * offers to enroll at a school without having completed the required vaccinations, the local health officer may grant a period of time up to ninety (90) days for that completion when, in the opinion of the health officer, the delay will not cause undue risk to the child, the school or the community. No child shall be enrolled without having had at least one (1) dose of each specified vaccine.
(7) Within thirty (30) days after the opening of the fall term of school (on or before October 1 of each year) the person in charge of each school shall report to the county or local health officer, on forms provided by the Mississippi State Board of Health, the number of children enrolled by age or grade or both, the number fully vaccinated, the number in process of completing vaccination requirements, and the number exempt from vaccination by reason of a certificate of exemption.
(8) Within one hundred twenty (120) days after the opening of the fall term (on or before December 31), the person in charge of each school shall certify to the local or county health officer that all children enrolled are in compliance with immunization requirements.
(9) For the purpose of assisting in supervising the immunization status of the children the local health officer, or his designee, may inspect the children's records or be furnished certificates of immunization compliance by the school.
(10) It shall be the responsibility of the person in charge of each school to enforce the requirements for immunization. Any child not in compliance at the end of ninety (90) days from the opening of the fall term must be suspended until in compliance, unless the health officer attributes the delay to lack of supply of vaccine or some other such factor clearly making compliance impossible.
(11) The State Health Officer or local health officer shall provide to the superintendents of schools a notice upon the occurrence of any communicable disease or condition, or threat of communicable disease or condition, that in the opinion of the State health Officer or local health officer requires the removal of unvaccinated children from school, directing the superintendent of schools to remove unvaccinated children from school for the period of time necessary to protect their health and that of the public.
(12) Failure to enforce provisions of this act shall constitute a misdemeanor and, upon conviction, be punishable by fine or imprisonment or both.
SECTION 2. Section 37-13-91, Mississippi Code of 1972, is amended as follows:
37-13-91. (1) This section shall be referred to as the "Mississippi Compulsory School Attendance Law."
(2) The following terms as used in this section are defined as follows:
(a) "Parent" means the father or mother to whom a child has been born, or the father or mother by whom a child has been legally adopted.
(b) "Guardian" means a guardian of the person of a child, other than a parent, who is legally appointed by a court of competent jurisdiction.
(c) "Custodian" means any person having the present care or custody of a child, other than a parent or guardian of the child.
(d) "School day" means not less than five (5) and not more than eight (8) hours of actual teaching in which both teachers and pupils are in regular attendance for scheduled schoolwork.
(e) "School" means any public school in this state or any nonpublic school in this state which is in session each school year for at least one hundred eighty (180) school days, except that the "nonpublic" school term shall be the number of days that each school shall require for promotion from grade to grade.
(f) "Compulsory-school-age child" means a child who has attained or will attain the age of six (6) years on or before September 1 of the calendar year and who has not attained the age of seventeen (17) years on or before September 1 of the calendar year; and shall include any child who has attained or will attain the age of five (5) years on or before September 1 and has enrolled in a full-day public school kindergarten program. Provided, however, that the parent or guardian of any child enrolled in a full-day public school kindergarten program shall be allowed to disenroll the child from the program on a one-time basis, and such child shall not be deemed a compulsory-school-age child until the child attains the age of six (6) years.
(g) "School attendance officer" means a person employed by the State Department of Education pursuant to Section 37-13-89.
(h) "Appropriate school official" means the superintendent of the school district, or his designee, or, in the case of a nonpublic school, the principal or the headmaster.
(i) "Nonpublic school" means an institution for the teaching of children, consisting of a physical plant, whether owned or leased, including a home, instructional staff members and students, and which is in session each school year. This definition shall include, but not be limited to, private, church, parochial and home instruction programs.
(3) A parent, guardian or custodian of a compulsory-school-age child in this state shall cause the child to enroll in and attend a public school or legitimate nonpublic school for the period of time that the child is of compulsory school age, except under the following circumstances:
(a) When a compulsory-school-age child is physically, mentally or emotionally incapable of attending school as determined by the appropriate school official based upon sufficient medical documentation.
(b) When a compulsory-school-age child is enrolled in and pursuing a course of special education, remedial education or education for handicapped or physically or mentally disadvantaged children.
(c) When a compulsory-school-age child is being educated in a legitimate home instruction program.
The parent, guardian or custodian of a compulsory-school-age child described in this subsection, or the parent, guardian or custodian of a compulsory-school-age child attending any nonpublic school, or the appropriate school official for any or all children attending a nonpublic school shall complete a "certificate of enrollment" in order to facilitate the administration of this section.
The form of the certificate of enrollment shall be prepared by the Office of Compulsory School Attendance Enforcement of the State Department of Education and shall be designed to obtain the following information only:
(i) The name, address, telephone number and date of birth of the compulsory-school-age child;
(ii) The name, address and telephone number of the parent, guardian or custodian of the compulsory-school-age child;
(iii) A simple description of the type of education the compulsory-school-age child is receiving and, if the child is enrolled in a nonpublic school, the name and address of the school; and
(iv) The signature of the parent, guardian or custodian of the compulsory-school-age child or, for any or all compulsory-school-age child or children attending a nonpublic school, the signature of the appropriate school official and the date signed.
The certificate of enrollment shall be returned to the school attendance officer where the child resides on or before September 15 of each year. Any parent, guardian or custodian found by the school attendance officer to be in noncompliance with this section shall comply, after written notice of the noncompliance by the school attendance officer, with this subsection within ten (10) days after the notice or be in violation of this section. However, in the event the child has been enrolled in a public school within fifteen (15) calendar days after the first day of the school year as required in subsection (6), the parent or custodian may, at a later date, enroll the child in a legitimate nonpublic school or legitimate home instruction program and send the certificate of enrollment to the school attendance officer and be in compliance with this subsection.
For the purposes of this subsection, a legitimate nonpublic school or legitimate home instruction program shall be those not operated or instituted for the purpose of avoiding or circumventing the compulsory attendance law.
(4) An "unlawful absence" is an absence during a school day by a compulsory-school-age child, which absence is not due to a valid excuse for temporary nonattendance. Days missed from school due to disciplinary suspension shall not be considered an "excused" absence under this section. This subsection shall not apply to children enrolled in a nonpublic school.
Each of the following shall constitute a valid excuse for temporary nonattendance of a compulsory-school-age child enrolled in a public school, provided satisfactory evidence of the excuse is provided to the superintendent of the school district, or his designee:
(a) An absence is excused when the absence results from the compulsory-school-age child's attendance at an authorized school activity with the prior approval of the superintendent of the school district, or his designee. These activities may include field trips, athletic contests, student conventions, musical festivals and any similar activity.
(b) An absence is excused when the absence results from illness or injury which prevents the compulsory-school-age child from being physically able to attend school.
(c) An absence is excused when isolation of a compulsory-school-age child is ordered by the county health officer, by the State Board of Health or appropriate school official. If there is an occurrence of a communicable disease or condition at a school, or threat of communicable disease or condition at a school, that in the opinion of the State Health Officer or local health officer requires the removal of unvaccinated children from school, the administrators of the school, upon the direction of the State Health Officer or the local health officer to remove unvaccinated children from school, shall exclude from attendance any children who are not vaccinated against that disease or condition for the period of time necessary to protect their health and that of the public.
(d) An absence is excused when it results from the death or serious illness of a member of the immediate family of a compulsory-school-age child. The immediate family members of a compulsory-school-age child shall include children, spouse, grandparents, parents, brothers and sisters, including stepbrothers and stepsisters.
(e) An absence is excused when it results from a medical or dental appointment of a compulsory-school-age child.
(f) An absence is excused when it results from the attendance of a compulsory-school-age child at the proceedings of a court or an administrative tribunal if the child is a party to the action or under subpoena as a witness.
(g) An absence may be excused if the religion to which the compulsory-school-age child or the child's parents adheres, requires or suggests the observance of a religious event. The approval of the absence is within the discretion of the superintendent of the school district, or his designee, but approval should be granted unless the religion's observance is of such duration as to interfere with the education of the child.
(h) An absence may be excused when it is demonstrated to the satisfaction of the superintendent of the school district, or his designee, that the purpose of the absence is to take advantage of a valid educational opportunity such as travel, including vacations or other family travel. Approval of the absence must be gained from the superintendent of the school district, or his designee, before the absence, but the approval shall not be unreasonably withheld.
(i) An absence may be excused when it is demonstrated to the satisfaction of the superintendent of the school district, or his designee, that conditions are sufficient to warrant the compulsory-school-age child's nonattendance. However, no absences shall be excused by the school district superintendent, or his designee, when any student suspensions or expulsions circumvent the intent and spirit of the compulsory attendance law.
(5) Any parent, guardian or custodian of a compulsory-school-age child subject to this section who refuses or willfully fails to perform any of the duties imposed upon him or her under this section or who intentionally falsifies any information required to be contained in a certificate of enrollment, shall be guilty of contributing to the neglect of a child and, upon conviction, shall be punished in accordance with Section 97-5-39.
Upon prosecution of a parent, guardian or custodian of a compulsory-school-age child for violation of this section, the presentation of evidence by the prosecutor that shows that the child has not been enrolled in school within eighteen (18) calendar days after the first day of the school year of the public school which the child is eligible to attend, or that the child has accumulated twelve (12) unlawful absences during the school year at the public school in which the child has been enrolled, shall establish a prima facie case that the child's parent, guardian or custodian is responsible for the absences and has refused or willfully failed to perform the duties imposed upon him or her under this section. However, no proceedings under this section shall be brought against a parent, guardian or custodian of a compulsory-school-age child unless the school attendance officer has contacted promptly the home of the child and has provided written notice to the parent, guardian or custodian of the requirement for the child's enrollment or attendance.
(6) If a compulsory-school-age child has not been enrolled in a school within fifteen (15) calendar days after the first day of the school year of the school which the child is eligible to attend or the child has accumulated five (5) unlawful absences during the school year of the public school in which the child is enrolled, the school district superintendent or his designee shall report, within two (2) school days or within five (5) calendar days, whichever is less, the absences to the school attendance officer. The State Department of Education shall prescribe a uniform method for schools to utilize in reporting the unlawful absences to the school attendance officer. The superintendent, or his designee, also shall report any student suspensions or student expulsions to the school attendance officer when they occur.
(7) When a school attendance officer has made all attempts to secure enrollment and/or attendance of a compulsory-school-age child and is unable to effect the enrollment and/or attendance, the attendance officer shall file a petition with the youth court under Section 43-21-451 or shall file a petition in a court of competent jurisdiction as it pertains to parent or child. Sheriffs, deputy sheriffs and municipal law enforcement officers shall be fully authorized to investigate all cases of nonattendance and unlawful absences by compulsory-school-age children, and shall be authorized to file a petition with the youth court under Section 43-21-451 or file a petition or information in the court of competent jurisdiction as it pertains to parent or child for violation of this section. The youth court shall expedite a hearing to make an appropriate adjudication and a disposition to ensure compliance with the Compulsory School Attendance Law, and may order the child to enroll or re-enroll in school. The superintendent of the school district to which the child is ordered may assign, in his discretion, the child to the alternative school program of the school established pursuant to Section 37-13-92.
(8) The State Board of Education shall adopt rules and regulations for the purpose of reprimanding any school superintendents who fail to timely report unexcused absences under the provisions of this section.
(9) Notwithstanding any provision or implication herein to the contrary, it is not the intention of this section to impair the primary right and the obligation of the parent or parents, or person or persons in loco parentis to a child, to choose the proper education and training for such child, and nothing in this section shall ever be construed to grant, by implication or otherwise, to the State of Mississippi, any of its officers, agencies or subdivisions any right or authority to control, manage, supervise or make any suggestion as to the control, management or supervision of any private or parochial school or institution for the education or training of children, of any kind whatsoever that is not a public school according to the laws of this state; and this section shall never be construed so as to grant, by implication or otherwise, any right or authority to any state agency or other entity to control, manage, supervise, provide for or affect the operation, management, program, curriculum, admissions policy or discipline of any such school or home instruction program.
SECTION 3. This act shall take effect and be in force from and after July 1, 2010.