The Register-Herald, Beckley, West Virginia

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October 18, 2012

Suit challenging state’s vaccine rule is dismissed

CHARLESTON — A judge on Wednesday dismissed a lawsuit that challenged new vaccine requirements for schoolchildren, ruling that the Department of Health and Human Resources can impose them.

Kanawha County Circuit Judge Tod Kaufman said in his decision that the immunization rule is consistent with state code and does not exceed the Legislature’s limits on interpretive rules. The lawsuit argued that the department cannot require additional vaccines without the Legislature’s approval.

“The main reason for my clients’ challenge in the first place was not addressed at all,” said Delegate Patrick Lane, an attorney who filed the lawsuit on behalf of six families. “The crux of our argument, the basis of our complaint, is that DHHR did not follow the proper legislative procedures that are required by statute.”

The Kanawha Republican said he anticipates that his clients will appeal.

State code requires children entering school for the first time to be immunized against diphtheria, polio, rubeola, tetanus and pertussis, or whooping cough.

Under the department’s rule, incoming seventh-graders and 12th-graders must show proof they have received one dose of vaccines against meningitis, tetanus, diphtheria and pertussis. Incoming 12th-graders must show proof they received booster doses after age 16.

The vaccinations are recommended by the Centers for Disease Control and Prevention.

Booster shots for Tdap are necessary to meet the Legislature’s directive to protect students from these diseases, Kaufman said.

He also said vaccination requirements for meningitis, as well as Hepatitis B and varicella, are valid under a state Board of Education rule. The school board, whose rules do not require legislative approval, requires students to be in compliance with the immunization schedule set by the Bureau of Public Health commissioner.

Kaufman noted that these vaccinations are recommended by the Advisory Committee on Immunization Practices, a 15-member group of experts selected by the U.S. Department of Health and Human Services secretary.

“The rule is entitled to substantial deference as it represents the best judgment of a national group with undoubted expertise and experience whose judgments are vetted before the public,” Kaufman wrote.

Similar lawsuits are pending in Mercer, Ohio and Randolph counties. Judges in these cases have ordered county school boards to provide homebound instruction to students barred from attending school because they did not receive vaccinations.

“In every one of those cases, the circuit judges recognized that the child does have a fundamental right to an education and that education must be provided irrespective of the vaccinations,” Lane said.

“Clearly, the counties are going to have to pay for homebound instruction.”

If Lane’s clients appeal the Kanawha County ruling, he said the Legislature probably will stay on the sidelines until the West Virginia Supreme Court issues a decision.

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