Parents' School Vaccination Lawsuit in WV Dismissed

This year has seen quite a bit of anti-vaccine sabre rattling when it comes to state laws and rules around school vaccinations. We saw Vermont trying to strengthen public health by eliminating philosophical exemptions, which was met by a fact-challenged tirade from a homeopath. That aspect failed, but requirements were put into place that parents review educational materials and attest to understanding the risks their decisions have not only for their kids, but for the community at large. In California, a bill was introduced requiring that parents get a signed statement from a health care provider indicating that the provider discussed the risks and benefits of vaccination (and vaccine refusal) with parents before a philosophical exemption will be granted. That bill was signed into law, despite anti-vaccine activists erroneously claiming that it violated and removed parental choice, revealing that they really are not in favor of informed consent. There had also been another bill that California Gov. Jerry Brown vetoed that would have required clinic employees to get the flu vaccine or take other reasonable precautions to minimize the risks of influenza in a health care setting. That bill (SB1318) is back with the Senate for consideration of the governor's veto.

And then there was the activity in West Virginia back in August. When I was launching my series of Vaccine Preventable Disease Wanted Posters, I mentioned in passing that a group of parents were suing the West Virginia Department of Health and Human Services (DHHS) over a new requirement that 7th graders and high school seniors get a Tdap booster and meningococcal vaccine. Well, there's been a new development with that.

Yesterday, October 17, Circuit Judge Tod Kaufman dismissed the parents' suit. The lawyer representing the parents, Patrick Lane, claimed that the state DHHS overstepped their authority by changing the school immunization requirements without first getting the state Legislature's okay. However, Judge Kaufman noted that DHHS:

has the authority to enforce school vaccination rules without approval from the state Legislature.

He added that:

Booster shots for Tdap are necessary to meet the Legislature's directive to protect students from these diseases.

This is exactly the right ruling, in my admittedly non-lawyer opinion, and here's why. There are a couple laws that seem to be pertinent to the case. First off, there is West Virginia Code 16-1-4, which grants to the DHHS secretary the power to propose rules to regulate:

The sanitary condition of all institutions and schools, whether public or private, public conveyances, dairies, slaughterhouses, workshops, factories, labor camps, all other places open to the general public and inviting public patronage or public assembly, or tendering to the public any item for human consumption and places where trades or industries are conducted.

Then there is WV Code 16-3. It charges the state's director of health to control communicable disease, part of which includes establishing school immunization requirements.

In light of these laws, the Legislature already granted to the Department of Health and Human Services the right, not to mention the duty, to establish and enforce rules to protect school children from communicable diseases. According to Kaufman:

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.

The parents may attempt to appeal this ruling, but I don't see them getting a different outcome. Their attorney, Patrick Lane, who also happens to be a member of the state's House of Delegates, should advise them to accept the ruling, if he can accept his own potential conflict of interest in the case. Appealing will most likely just use up public resources, not to mention wasting the parents' money.

As a final note, West Virginia is one of only two states (Mississippi being the other) that only allow medical exemptions to school immunization requirements. Religious and philosophical exemptions are not allowed.