Effective Date of Rule: Immediately.

     Purpose: Language from chapter 180-38 WAC is being adopted as new language in chapter 392-380 WAC as required by the transfer of duties from the state board of education to the superintendent of public instruction under E2SHB 2098 sections 909 through 911.

     Citation of Existing Rules Affected by this Order: Amending chapter 180-38 WAC.

     Statutory Authority for Adoption: RCW 28A.210.160.

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

     Reasons for this Finding: Unless these changes are done, there are no rules governing public school immunization requirements.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: August 30, 2006.

Marty Daybell

OTS-9113.1

AMENDATORY SECTION(Amending WSR 05-23-044, filed 11/9/05, effective 12/10/05)

WAC 180-38-005   Purpose and authority.   (1) The purpose of this chapter is 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 or treatment order for a life-threatening health condition.

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

[Statutory Authority: RCW 28A.210.160. 05-23-044, § 180-38-005, filed 11/9/05, effective 12/10/05; 02-24-019, § 180-38-005, filed 11/26/02, effective 12/27/02. 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.]

     (2) The chief administrator of each public ((or private)) school shall prohibit the further presence at school of each student already in attendance and who has failed to provide proof of immunization in accordance with RCW 28A.210.080(1). Such exclusion shall be preceded by written notice as set forth in WAC 180-38-050. If written notice has not been provided, any exclusion shall be stayed until notice is received by a parent, guardian or other adult in loco parentis.

     (3) The initial attendance of every student at every public school who has a life-threatening health condition is conditioned upon:

     (a) Presentation by the parent of a medication or treatment order addressing any life-threatening health condition the child has that may require medical services to be performed at the school; and

     (b) Formulation of a nursing plan to implement the order.

     The parent shall also provide any medication or equipment identified in the medication or treatment order necessary to carry out the order, unless the school district is required to provide the medication or equipment as a related service under federal law.

     (4) The chief administrator of each public school shall prohibit the further attendance of each student already in attendance for whom a medication or treatment order has not been provided if the child has a life-threatening health condition that may require medical services to be performed at the school. Any such exclusion shall be preceded by written notice as set forth in WAC 180-38-050. If written notice has not been provided, any exclusion shall be stayed until notice is received by a parent. The school shall continue to prohibit the child's presence until the school:

     (a) Receives a medication or treatment order and any medication or equipment identified in the order necessary to carry out the order, unless the school district is required to provide such medication or equipment as a related service under federal law; and

     (b) Has a nursing plan in place.

     A new medication or treatment order must be submitted whenever there are changes in the medication or treatment needs of the child. The nursing plan shall be amended accordingly.

     (5) Upon receipt of a medication or treatment order, the school shall develop a nursing plan.

     (6) The requirements of this chapter shall be applied consistent with the requirements of section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act (IDEA).

[Statutory Authority: RCW 28A.210.160. 02-24-019, § 180-38-045, filed 11/26/02, effective 12/27/02. 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.]

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

     (a) Be delivered in person or by certified mail and provided to parents in their native language if feasible.

     (b) Inform the appropriate parents of the applicable laws and implementing rules. In addition to notification of the applicable laws and regulations, a copy of the laws and regulations shall be included with the notice.

     (c) In cases of exclusion due to lack of proof of immunization, provide information regarding immunization services that are available from or through the local health department and other public agencies.

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

     (e) Describe the rights of the parents and student to a hearing, describe the hearing process, and explain that the exclusion continues until either the necessary proof of immunization, or medication or treatment plan is received, or until a hearing officer determines that the student is no longer excluded from school.

     (((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) Provide information regarding immunization services 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: RCW 28A.210.160. 02-24-019, § 180-38-050, filed 11/26/02, effective 12/27/02. 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.]

     (2) The school district shall establish a hearing process consistent with the procedures set forth for disciplinary cases under chapter ((180-40)) 392-400 WAC.

[Statutory Authority: RCW 28A.210.160. 03-13-079, § 180-38-080, filed 6/16/03, effective 7/17/03.]

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