MISSISSIPPI LEGISLATURE
2013 Regular Session
To: Public Health and Human Services; Education
By: Representatives Cockerham, Bain, Brown (20th), Byrd, Chism, Evans (43rd), Hamilton, Zuber
AN ACT TO AMEND SECTION 41-23-37, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A CHILD WILL BE EXEMPT FROM THE REQUIREMENT TO HAVE ANY SPECIFIC VACCINATION IN ORDER TO ATTEND A SCHOOL IF THE CHILD'S PARENT OR GUARDIAN SUBMITS TO THE SCHOOL A LETTER OR AFFIDAVIT THAT DOCUMENTS WHICH REQUIRED VACCINATIONS HAVE BEEN GIVEN, AND WHICH VACCINATIONS HAVE NOT BEEN GIVEN ON THE BASIS THAT THEY ARE CONTRARY TO HIS OR HER BELIEFS; TO PROVIDE THAT BEGINNING WITH THE 2013-2014 SCHOOL YEAR, A FORM PRESCRIBED BY THE STATE DEPARTMENT OF HEALTH SHALL ACCOMPANY THE LETTER OR AFFIDAVIT SUBMITTED BY THE PARENT OR GUARDIAN, WHICH INCLUDES BOTH A SIGNED ATTESTATION FROM A HEALTH CARE PRACTITIONER THAT THE HEALTH CARE PRACTITIONER PROVIDED THE PARENT OR GUARDIAN WITH INFORMATION REGARDING THE BENEFITS AND RISKS OF THE VACCINATIONS AND THE HEALTH RISKS TO THE CHILD AND TO THE COMMUNITY OF THOSE DISEASES SPECIFIED FOR VACCINATION, AND A WRITTEN STATEMENT SIGNED BY THE PARENT OR GUARDIAN THAT INDICATES THAT THE SIGNER HAS RECEIVED THE INFORMATION PROVIDED BY THE HEALTH CARE PRACTITIONER; TO AMEND SECTION 37-13-91, MISSISSIPPI CODE OF 1972, TO AUTHORIZE SCHOOL ADMINISTRATORS, WHEN THERE IS GOOD CAUSE TO BELIEVE THAT A CHILD HAS BEEN EXPOSED TO ANY DISEASE SPECIFIED FOR VACCINATION AND THE CHILD IS NOT VACCINATED AGAINST THAT DISEASE UNDER THE EXEMPTION AUTHORIZED UNDER THIS ACT, TO TEMPORARILY EXCLUDE THAT CHILD FROM ATTENDANCE UNTIL THE LOCAL HEALTH OFFICER IS SATISFIED THAT THE CHILD IS NO LONGER AT RISK OF DEVELOPING THE DISEASE; 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 * * *
first have been vaccinated against those diseases specified by the State Health
Officer.
(3) A certificate of exemption from vaccination for medical reasons may be offered on behalf of a child by a duly licensed physician and may be accepted by the local health officer when, in his opinion, such exemption will not cause undue risk to the community.
(4) (a) No child seeking to attend any school shall be required to comply with the requirements of this section for any specific vaccination in order to attend the school if the parent or guardian or adult who has assumed responsibility for the child's care and custody in the case of a minor, or the child seeking admission if an emancipated minor, submits to the school a letter or affidavit that documents which required vaccinations have been given, and which vaccinations have not been given on the basis that they are contrary to his or her beliefs.
(b) Beginning with the 2013-2014 school year, a form prescribed by the State Department of Health shall accompany the letter or affidavit filed under paragragh (a) of this subsection. The form shall include both of the following:
(i) A signed attestation from a health care practitioner that indicates that the health care practitioner provided the parent or guardian of the child who is subject to the vaccination requirements of this section, the adult who has assumed responsibility for the care and custody of the child, or the child if an emancipated minor, with information regarding the benefits and risks of the vaccinations and the health risks to the child and to the community of those diseases specified by the State Health Officer for vaccination. This attestation shall be signed not more than six (6) months before the date when the child first becomes subject to the vaccination requirements for which exemption is being sought.
(ii) A written statement signed by the parent or guardian of the child who is subject to the vaccination requirements of this section, the adult who has assumed responsibility for the care and custody of the child, or the child if an emancipated minor, that indicates that the signer has received the information provided by the health care practitioner under subparagraph (i) of this paragragh (b). This statement shall be signed not more than six (6) months before the date when the child first becomes subject to the vaccination requirements for which exemption is being sought.
(c) The following shall be accepted in lieu of the original form:
(i) A photocopy of the signed form.
(ii) A letter signed by a health care practitioner that includes all information and attestations included on the form.
(d) For the purposes of this subsection, the term "health care practitioner" means a physician, nurse practitioner or physician assistant who is licensed to practice in Mississippi.
(5) Certificates of vaccination 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 these immunization requirements, and the responsible school officials shall file the form with the child's record.
(6) If a child who
is not exempt under subsection (3) or (4) of this section * * * 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 such completion when, in
the opinion of the health officer, such 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 for such 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 who are not exempt under subsection (3) or (4) of this section 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 exempt under subsection (3) or
(4) of this section who is 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) 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. When there is good cause to believe that a child has been exposed to any disease specified by the State Health Officer for vaccination and the child is not vaccinated against that disease under the authority of Section 41-23-37(4), that child may be temporarily excluded from the school until the local health officer is satisfied that the child is no longer at risk of developing the disease.
(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, 2013.