WSR 02-18-051

EMERGENCY RULES

STATE BOARD OF EDUCATION


[ Filed August 28, 2002, 3:44 p.m. ]

     Date of Adoption: August 23, 2002.

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

     Citation of Existing Rules Affected by this Order: Repealing WAC 180-38-010, 180-38-025, 180-38-030, 180-38-035, 180-38-040, 180-38-055, 180-38-060, 180-38-065 and 180-38-070; amending WAC 180-38-005, 180-38-020, 180-38-045 and 180-38-050; and new section WAC 180-38-080.

     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: The language changes impact students entering school next month. The rules need to be effective immediately to ensure student safety and clarify procedures.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 1, Amended 4, Repealed 9.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 1, Amended 4, Repealed 9.

     Number of Sections Adopted Using Negotiated Rule Making: New 1, Amended 4, Repealed 9;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
     Effective Date of Rule: Immediately.

August 28, 2002

Larry Davis

Executive Director

OTS-5520.5

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 or 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, including the conditions for school attendance when a child is not fully immunized, as prescribed by the state board of health (WAC 246-100-166(5)).

     (5) "Certificate of exemption" shall mean the filing of a statement exempting the child from immunizations 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 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) "Medication or treatment order" shall mean the authority a registered nurse obtains under RCW 18.79.260(2). The order shall be signed by a licensed health care practitioner listed under RCW 18.79.260(2).

     (8) "Nursing plan" shall mean a plan of care developed for the student consistent with the standards of nursing conduct or practice set out in department of health regulations, WAC 246-840-700 et. seq.

     (9) "Exclusion" shall mean the case or instance when the student is denied initial or continued attendance:

     (a) Due to failure to submit a schedule of immunization, or a certificate of exemption; or

     (b) In the case of a life-threatening health condition, due to failure to submit a medication or treatment order.

     (10) "School day" shall mean the same as in RCW 28A.150.030 and shall be inclusive of school or district sponsored field trip experiences and extracurricular activities and summer school.

[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.)) (1) 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.

     (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 presentation 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.

     (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, guardian or other adult in loco parentis. The school shall continue to prohibit the child's presence until such medication or treatment order has been provided.

     (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: 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 WAC 180-38-045.

     (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: 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.]


NEW SECTION
WAC 180-38-080   Prehearing and hearing process.   (1) If a request for hearing is received by the school district, it shall schedule a hearing. The hearing must be scheduled within three school days of receiving the request. The hearing may be continued to a later date if the parent requests a longer period.

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

[]


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 180-38-065 Exclusion of students for failure to comply.
WAC 180-38-070 Supplementing rules of SPI.

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