WSR 02-14-140

PROPOSED RULES

STATE BOARD OF EDUCATION


[ Filed July 2, 2002, 4:47 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 02-08-043.

Title of Rule: Chapter 180-38 WAC, Pupils -- Immunization requirement.

Purpose: Amend language to be in compliance with SHB 2834 enacted during the 2002 legislative session and language to address a potential vaccine shortage.

Statutory Authority for Adoption: RCW 28A.31.118.

Summary: SHB 2834 signed March 22, 2002, indicates the State Board of Education shall adopt rules under chapter 34.05 RCW that establish the procedural and substantive due process requirements governing exclusion of children from public schools. The language amendments also include the State Board of Health language adoption addressing when a state health officer declares a shortage of specific vaccine(s) within the full immunization schedule.

Reasons Supporting Proposal: Provides a necessary process for the health, safety, and protection of all public and private school students.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Larry Davis, State Board of Education, Olympia, (360) 725-6024.

Name of Proponent: State Board of Education.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The rule will incorporate law language indicating the attendance of every child at every public school in the state shall be conditioned upon the presentation before or on each child's first day of attendance at a particular school of a medication or treatment order addressing any life-threatening health condition that the child has that may require medical services to be performed at the school.

The rule language also includes the State Board of Health language adoption addressing when a state health officer declares a shortage of specific vaccine(s) within the full immunization schedule.

Proposal Changes the Following Existing Rules: Amends sections within chapter 180-38 WAC.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Not applicable.

RCW 34.05.328 does not apply to this rule adoption. Not applicable.

Hearing Location: Enumclaw School District Board Room, 2929 McDougall Avenue, Enumclaw, WA 98022-7499, on August 21, 2002, at 8:30 a.m.

Assistance for Persons with Disabilities: Contact Laura Moore by August 13, 2002, TDD (360) 664-3631, or (360) 725-6027.

Submit Written Comments to: Rules Coordinator, State Board of Education, P.O. Box 47206, Olympia, WA 98504-7206, Patty Martin, Associate Director, fax (360) 586-2357, by August 13, 2002.

Date of Intended Adoption: August 23, 2002.

July 2, 2002

Larry Davis

Executive Director

OTS-5520.3

Chapter 180-38 WAC

PUPILS -- IMMUNIZATION REQUIREMENT AND LIFE-THREATENING HEALTH CONDITION


AMENDATORY SECTION(Amending WSR 90-17-009, filed 8/6/90, effective 9/6/90)

WAC 180-38-005   Purpose and authority.   (1) The ((authority for)) purpose of this chapter is ((RCW 28A.210.160 which authorizes the state board of education to adopt rules which)) to establish the procedural and substantive due process requirements governing the exclusion of students from public and private schools for failure to comply with the immunization requirement of the state of Washington or, in the case of public schools only, failure to present a medication treatment order for a life-threatening health condition.

(2) The authority for this chapter is RCW 28A.210.160 and 28A.210.xxx.

[Statutory Authority: 1990 c 33. 90-17-009, 180-38-005, filed 8/6/90, effective 9/6/90. Statutory Authority: RCW 28A.31.118. 85-20-040 (Order 20-85), 180-38-005, filed 9/25/85.]


AMENDATORY SECTION(Amending Order 20-85, filed 9/25/85)

WAC 180-38-020   Definitions(( -- Student)).   ((As used in this chapter, the term)) The definitions in this section apply throughout this chapter unless the context clearly requires otherwise:

(1) "Student" shall mean the same as defined for "child" in ((WAC 248-100-163 (1)(f) by the state board of health)) RCW 28A.210.070(6).

(2) "Chief administrator" shall mean the same as defined in RCW 28A.210.070(1).

(3) "Full immunization" shall mean the same as defined in RCW 28A.210.070(2).

(4) "Schedule of immunization" shall mean the beginning or continuing of a course of immunization prescribed by the state board of health.

(5) "Certificate of exemption" shall mean the filing with the chief administrator of the school, on a form prescribed by the department of health, which complies with RCW 28A.210.090.

(6) "Life-threatening health condition" shall mean a health condition that will put the child in danger of death during the school day if a medication or treatment order and a nursing plan are not in place.

(7) "School day" shall mean the same as in RCW 28A.140.030 and shall be inclusive of school or district sponsored field trip experiences and extracurricular activities.

[Statutory Authority: RCW 28A.31.118. 85-20-040 (Order 20-85), 180-38-020, filed 9/25/85.]


AMENDATORY SECTION(Amending WSR 90-17-009, filed 8/6/90, effective 9/6/90)

WAC 180-38-045   School attendance ((condition)) conditioned upon ((compliance)) presentation of proofs.   ((It is the public policy of this state, as codified in RCW 28A.210.080, that "[t]he attendance of every . . . [student] in the state . . . shall be conditioned upon the presentation before or on each . . . [student's] first day of attendance at a particular school . . ., of proof of . . .[:] (1) full immunization, (2) the initiation of and compliance with a schedule of immunization, as required by rules of the state board of health, or (3) a certificate of exemption as provided for in RCW 28A.210.090. [See WAC 180-38-040]"

The statutory scheme requires exclusion from school prior to a termination hearing on the implied basis that such students are an immediate and continuing danger to themselves or others -- i.e., the constitutional basis for an emergency expulsion from public schools and the exemption from providing a pretermination due process hearing.)) The initial attendance of every student at every public and private school in the state is conditioned upon proof of immunization as set forth in RCW 28A.210.080. The initial attendance of every student who has a life threatening condition is conditioned upon presentation of a medication or treatment order as set forth in RCW 28A.210.xxx.

[Statutory Authority: 1990 c 33. 90-17-009, 180-38-045, filed 8/6/90, effective 9/6/90. Statutory Authority: RCW 28A.31.118. 85-20-040 (Order 20-85), 180-38-045, filed 9/25/85.]


AMENDATORY SECTION(Amending WSR 90-17-009, filed 8/6/90, effective 9/6/90)

WAC 180-38-050   Written notice prior to exclusions from school.   ((It is the public policy of this state, as codified in RCW 28A.210.120, that "each school . . . shall provide written notice to the parent(s) or legal guardian(s) of each . . . [student] or to the adult(s) in loco parentis to each . . . [student] who is not in compliance with . . . [the public policy stated in WAC 180-38-045]," prior to the exclusion of such student.)) (1) Schools must provide written notice to parents, guardians or adults in loco parentis prior to excluding students from school for failure to comply with RCW 28A.210.120 or with RCW 28A.210.xxx.

(2) The written notice for public school students shall:

(a) Comply with the emergency expulsion notice requirements of WAC 180-40-300 except that the notice must be received prior to the emergency expulsion of the student.

(b) Inform the appropriate party of the applicable laws and provide copies of such laws and implementing rules, including procedural due process rules prescribed by the state board of education for emergency expulsion.

(c) Information regarding immunization services and life-threatening health conditions that are available from or through the local health department and other public agencies.

(d) Order an emergency expulsion of the student from school and state that such order is effective immediately upon receipt of the notice.

(3) The written notice for private school students shall:

(a) Inform the appropriate party of the applicable laws and provide copies of such law and implementing rules.

(b) Information regarding immunization services and life-threatening health conditions that are available from or through the local health department or other public agencies.

(c) Order the exclusion of the student from school and state that such order is effective upon receipt of the notice.

[Statutory Authority: 1990 c 33. 90-17-009, 180-38-050, filed 8/6/90, effective 9/6/90. Statutory Authority: RCW 28A.31.118. 85-20-040 (Order 20-85), 180-38-050, filed 9/25/85.]


AMENDATORY SECTION(Amending Order 20-85, filed 9/25/85)

WAC 180-38-065   Exclusion of students ((for failure to comply)) already attending school.   The chief administrator of each public or private school shall ((exclude from such)) prohibit the further presence at school ((all)) each student((s)) who fails to comply with the public policy stated within ((WAC 180-38-045: Provided, That)) RCW 28A-210-080 or 28A.210.xxx. However, if the chief administrator did not provide written notice as required in WAC 180-38-050 prior to the student's first day of attendance at such school, the emergency expulsion or exclusion shall be stayed until the notice is received.

[Statutory Authority: RCW 28A.31.118. 85-20-040 (Order 20-85), 180-38-065, filed 9/25/85.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 180-38-010 Purpose.
WAC 180-38-025 Definition -- Chief administrator.
WAC 180-38-030 Definition -- Full immunization.
WAC 180-38-035 Definition -- Schedule of immunization.
WAC 180-38-040 Definition -- Certificate of exemption.
WAC 180-38-055 Public schools -- Content of written notice.
WAC 180-38-060 Private schools -- Content of written notice.
WAC 180-38-070 Supplementing rules of SPI.

Washington State Code Reviser's Office