Bill S1331-2011

Enacts the "philosophical exemption to immunizations act"

Enacts the "philosophical exemption to immunizations act" in order to establish an exemption to mandatory immunizations.

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  • Jan 4, 2012: REFERRED TO HEALTH
  • Jan 6, 2011: REFERRED TO HEALTH

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BILL NUMBER:S1331

TITLE OF BILL: An act to amend the public health law, in relation to enacting the "philosophical exemption to immunizations act"

PURPOSE OR GENERAL IDEA OF BILL: This Act establishes a new exemption status based on personal objections of a philosophic nature.

SUMMARY OF SPECIFIC PROVISIONS: Subdivision 6 of sections 2164 and 2165 is amended to provide a means for applicants who declare "personal objections" to immunization to be exempt, utilizing the existing form originally instituted in this subdivision. This consent form is to be amended to accommodate an affirmation of "personal objections" to immunization, as described fully in the bill.

The phrase, "or other evidence of compliance as noted in this section", is added to § 2l64(8-a) for clarification of the statute, as described fully in the bill.

Subdivision 9 of sections 2164 and 2165 is amended to introduce the "personal objection" waiver, alongside the existing medical and religious waivers. The phrase, "of immunization, medical tests and treatments" is also added for clarity and consistency, as described fully in the bill.

JUSTIFICATION: Legislative Background:

Currently, parents of children in school must show proof of vaccination of legislatively mandated vaccines, unless they have an approved religious or medical waiver. To obtain religious waivers, applicants are required to demonstrate their religiousness to a level acceptable to the school. Claimants are asked to submit to myriad and lengthy verbal affidavits or written questionnaires that delve broadly into their personal affairs to an extent unanticipated by the legislature at the time the section was amended in 1989.

Recognizing that this practice impinges on First Amendment protections, regulators have been careful not to specify a mechanism for schools to execute this function. Claimants feel they are denied the exemption unfairly, based upon determinations having no apparent uniform criteria. This has generated grievances that the process does not operate in an equitable manner. The intrusive nature of the inquiry, has led to widespread appeals to the Commissioner, and litigation in the state and federal circuits.

Alternatively, to be exempted medically, a licensed physician or nurse practitioner (for post-secondary school students) must certify a vaccine may be detrimental to health, and stipulates when it will no longer remain so.

However, in practice, a physician's determinations are subject to oversight by the Department of Health (DOH), which employs inappropriate standards. The DOH compares certifications from physicians to broad-based, pre-established, vaccination product recommendations from the CDC's Advisory Committee on Immunization Practices (ACIP) - a non-legally binding government committee, and the American Academy of Pediatrics Committee on Infectious Diseases (AAP) - a private, special interest medical organization.

These vaccine usage recommendations are a composite of, (a) the Vaccine Injury Table maintained by Health and Human Resources, which sets strict legal rules for establishing causality for the federal vaccine injury compensation program, and (b) safety studies sponsored by vaccine manufacturers. Ironically, ACIP's recommendations appear lax compared to the cautious recommendations written on the product inserts, intended to protect manufacturers from liability. Indeed, the vaccine approval and licensing process, as operated by the FDA and ACIP, actually functions primarily to release federal funds to buy vaccines from the manufacturers. (1)

Physicians and nurse practitioners are aware that they may become subjects of investigation by the DOH or suffer sanctions and penalties from their licensing boards, if they are seen as departing from these official policy recommendations. Yet, these broad-based recommendations use restrictive criteria for determining vaccine contraindications, and often fall outside the parameters that a personal-care clinician may rightfully deem an unacceptable risk to health, based upon his/her medical training, experience, patient's medical and family history, and medical conditions unique or peculiar to the patient.

Safety Concerns

Autism and autoimmune diseases have soared to epidemic proportions in the U.S. and the developed world. The rates of type-l diabetes and asthma in children have doubled since 1980 in places where air pollution has sharply declined. (2) Debates that are currently raging within medical circles concerning the role that vaccinations may play in autistic spectrum disorders, learning disabilities, chronic neurological and autoimmune diseases may be indicative that medical consensus is waning on vaccine recommendations.

Today, a child receives about 39 doses of vaccines by the time he's 6 years-old. By the time he's finished primary school, he would have received roughly four times that many doses. Over 200 new genetically engineered vaccines are now under development, and are candidates for mandates. What most physicians are concerned about is protecting the most vulnerable children.

The aforementioned concerns prompted the 4,000 members of the Association of American Physicians and Surgeons (AAPS) - a professional association of physicians founded in 1943 _ to vote on November 2000, at their 57th Annual Meeting in St. Louis to pass a resolution calling for an end to all state mandatory childhood vaccines. The resolution passed without a single "no" vote. (Resolution and mandatory vaccine fact sheet posted at www.aapsonline.org). (3)

But rescinding vaccination mandates is not a measure that has to be taken. This bill provides a prudent and equitable alternative, proven so in 18 other states (see below). While permitting a means for parents to opt out, existing safeguards remain in place - authorized in section 2164, as well as Health and Education Law (4) - for educating the public, surveying for outbreaks of communicable diseases, and requiring schools to exclude susceptibles, inform the DOH, and inform other parents of children attending the school, in such an event. A completed consent form provided under subdivision 6 _ amended to accommodate an affirmation of "personal objections" to immunization- will properly distinguish a parent who is acting responsibly, from one who may be negligent.

Restricting exemptions in order to maintain, "herd immunity" isn't justified. Herd immunity is maintained with a "threshold" vaccine coverage of 80-90%. But according to 1994-1995 data from 40 states reported to the CDC, about 0.5% of parents in the U.S. file for vaccination exemptions, citing medical, religious or philosophical reasons, although the number is as high as 2.5% in some states. Nevertheless, herd immunity is supposed to indirectly protect those who are not vaccinated from infection (not necessarily disease). Therefore, those choosing to be vaccinated are theoretically protected from disease, whether vaccine coverage achieves the required threshold or not.

Parental Involvement:

With the aforementioned restrictions placed on obtaining religious and medical waivers, this bill - herein referred to as the "Philosophical Exemption Act" - essentially permits parental involvement in medical decisions involving their children. This is actually in accord with the CDC's own statements: "...the goal that all parties share regarding vaccine risk communication should be informed decision making. Consent for vaccination is truly "informed" when the members of the public know the risks and benefits and make voluntary decisions." (5) "Voluntary decisions" and "informed decisions" implies there's freedom to make those decisions. This bill affords parents the opportunity to act on their decisions.

In recent years, there has been increased public awareness of apparent vaccine-associated injuries and diseases. People now have access - via the Internet - to medical journals and public health bulletins. Parents observing permanent changes in their children just hours or days following vaccination are numbering in the tens of thousands, and are questioning the official position that there are no causative associations. Some parents believe that the high level of doses currently mandated for school may be diminishing the overall benefits of vaccination. Others in consultation with their family physicians _ have concluded that the "one-size-fits-all" vaccination schedule is inappropriate for their children. Many of these parents are in fact doctors, health professionals, lawyers, and teachers themselves.

Surprisingly, based on the current ACIP vaccine recommendations, a student in NYS cannot qualify for the medical waiver for a particular vaccine based solely on evidence that it produced severe reactions in his siblings, or for other vaccines that contain any of the same preservatives, adjutants, neutralizers, carrying agents, and extracting

agents such as thimerosal (a mercury derivative), benzethonium chloride, methyl paraben, phenol red, pyridene, ethanol, ethylene chlorophyrin, aluminum hydroxide, aluminum hydrochloride, sodium hydroxide, aluminum sulfate, aluminum potassium sulfate, sorbitol, hydrolyzed gelatin, carbonic acid, thiosalicyclic acid, or formaldehyde (in the form of formalin). Indeed, there exists parents with one or more children who are autistic, or otherwise neurologically impaired from vaccination, who are not allowed the medical exemption for those children, or other siblings.

In observing the strenuous lobbying efforts to mandate the controversial (re: safety and efficacy) hepatitis-b vaccine - for children who are at low-risk for the disease, and the precipitous approval of the dangerous rotavirus vaccine - subsequently withdrawn from the market, many parents sense a growing fanaticism has taken hold of public health officials, who appear too eager to maximize vaccination rates at any cost - not solely to prevent disease, but also to maximize receipt of federal grants that are directly matched to state vaccination levels, as well as to sustain and vindicate the efficacy of the medical paradigm that has become the cornerstone of their profession.

Consequently, some parents have taken an active role in their family's health. So in addition to some aspects of allopathic medicine, some parents also include homeopathy, anthroposophy, or eastern medicine as an integral part of their overall health strategies. Others have adopted principles of Natural Hygiene, among which includes the safe and effective reliance on fasting instead of antipyretic and antipruritic drugs at the onset of catarrhal diseases. As evidence mounts that vaccines solely stimulate humoral immunity, and suppress cell-mediated immunity (that which prevents infectious diseases) (6) these people are seeking answers to prohlyaxis in other ways.

Apparently, these alternatives are yielding good results. For example, lifestyle factors associated with anthroposophy - characterized by restricted use of antibiotics, few vaccinations, and a diet rich in live lactobacilli - may lessen the risk of atopy in childhood. (7) Conversely, disease outbreaks are known to occur amid highly vaccinated populations - and often disproportionately among those vaccinated. Also satisfactory long-term studies on vaccine safety are yet to be performed (Appendix 1).

Perhaps parents should no longer be stigmatized for their decision not to vaccinate. By definition, parents making these choices are responsible and conscientious, and their names should no longer be listed in 'watch' registries of child protection services for either medical, or educational neglect (if rejection of waiver leads to children being excluded from school).

The Philosophical Exemption:

Currently, all states except West Virginia and Mississippi have religious exemptions. Philosophic-type exemptions are allowed in 18 states: Arizona, California, Colorado, Idaho, Indiana, Louisiana, Maine, Michigan, Minnesota, New Mexico, N. Dakota, Ohio, Oklahoma, Rhode Island, Utah, Vermont, Washington, Wisconsin. At the time of this writing, a House and Senate bill in the Missouri legislature, and a

Senate bill in West Virginia, if enacted, would establish philosophic-type waivers in those states.

Most states that have philosophic-type waivers also have religious waivers. However, in NYS, where only a religious waiver is allowed, regulations specifically require school officials to distinguish between what is 'philosophical' and what is 'religious'. Litigation most often involves the state arguing that parents hold 'personal philosophies', rather than 'legitimate' religious beliefs. All states allow medical waivers based on a risk to health. This is not surprising, given that the basis for the mandates themselves derive from allopathic medicine. However, what might be surprising that while the right of the state to impose the mandates has been upheld since 1905 in "Jacobsen v. Commonwealth of Massachusetts", (8) the actual efficacy of vaccination as a public health. measure to justify state mandates has never been reviewed by the judiciary.

That was the basis for the decision in Viemeister v. White (1904), in which New York State's compulsory vaccination law against smallpox was upheld. From "Viemeister", the court affirmed the legislative mandate, based on "the common belief of the people" that vaccination fulfills its promise, "whether it does in fact or not." (9) The U.S. Supreme Court followed suit a year later in "Jacobsen", using similar phrases "this is the common belief of the people of the state" in upholding the state's mandatory vaccination statute. Thereafter, courts generally made allowances for exemptions based on personal and religious freedoms, and parental rights, but restricted them with respect to countervailing factors: protection of the community from communicable diseases and protections of minor children. (10)

The grounds for Viemeister and Jacobsen decisions can be traced to the U.S. Constitution. The creation by the legislature of the coequal executive and judicial branches laid the foundation for the establishment of an aristocratic class: A hierarchical system emerged which depended on experts whose authority had to be taken as given. In particular, the rise of the status of medical doctors in America was acknowledged through the acceptance by the U.S. Supreme Court of the doctrine of "high medical authority". (11) in "Jacobsen" and its progeny, the doctrine of high medical authority is used to preclude new countervailing medical evidence, least of all alternative paradigms of health and disease. Thus describes the root of the problem in expanding freedoms to dissent from medical mandates.

However, the grounds for philosophical dissent are also rooted in the Constitution. It provides the right to hold views different from the majority, and the right to act conscientiously in accordance with those views. Certainly, a pluralistic society flourishes if the views of the minority are afforded some protection. The theme of the Philosophical Exemption Act is the acknowledgment that a system of health care has emerged dominant in the society, and that rightly or wrongly, the government has chosen to promote it through legal mandates. However, just as the government is restricted from establishing religion, it can be argued in the abstract, that it is not the role of government to sanction one theory of health and disease over any other. Indeed, some of the Founders of our Republic wanted to include a guarantee for medical freedom in Article 1 of the Constitution, as had been provided

for civil and religious freedoms. But the efforts were blocked by the established medical interests at the time. (Appendix 2)

Nevertheless, a legislated philosophical exemption provides a rightful means for an individual to decline and abstain from medical mandates. It's a guarantee that no government sanctioned paradigm or system of beliefs will retain absolute authority over an individual's freedom of choice.

Religious and Philosophical Beliefs - Discussion:

As noted earlier, some of our nation's Founders thought that some secular beliefs and expressions (i.e., dissent from compulsory medicine) should be extended the same Constitutional protections as religious beliefs. Indeed, the coexistence of both religious and philosophical type waivers from vaccination in 18 states (currently) tends to validate that view. But to what extent has the distinction between 'religious' and 'philosophic' become blurred as it relates to the right to decide, and act upon ones beliefs?

Let us consider a hypothetical example of a belief: suppose a tenet of a religion was to avoid eating meat and grains in the same meal. Apparently, a thousand years ago, adherents to this religion realized that consuming meat and coarse grains together led to indigestion. They believed its discomfort arose because God had forbade this dietary mixture. A thousand years later, modem science uncovers a physiological explanation for the discomfort: starch-based foods require an alkaline medium in the stomach for it to be digested properly. But the meat portion of the food triggers the secretions of pepsin, an acid which lowers the pH and disrupts the digestion of the starch portion of the meal. The result is that some of the undigested starch decomposes via fermentation, yielding alcohol and methane gas, causing indigestion and discomfort. Despite the after-the-fact scientific explanation that became available later, this dietary decree would likely remain a recognized religious tenet to this day. But the opposite is not likely: a modem-day admonition against this diet would not be accepted as a religious tenet today.

Is it because this dietary rule is introduced in the modem era? Are beliefs considered religious only if they originated long ago? Perhaps they should not. What was thought to be discomforting 1000 years ago is still discomforting today.

Or is it because this dietary rule is now "colored" with a scientific explanation to account for the discomfort engendered by not adhering to the diet? Possibly. But it wouldn't affect the strength of conviction: An atheist may be just as certain that the airplane he's traveling in won't crash-based on his "faith" in technology - as a religious person may be - based on his faith in his god.

Religious beliefs entail a faith in God, or absolutes. Philosophical beliefs might include God-or "nature"but would essentially be based on science-which describes how nature works. But functionally-in degree of convictions, certainty and expectations-they appear to be no different. So, as science endeavors to reduce the number of absolutes, shouldn't people have the right to make decisions based on those "less than absolute" aspects of life-like whether or not vaccination is appropriate

for their children? For example, courts have restricted devoutly religious parents from withholding life-saving medical treatments from their children. Apparently today, society approves of religious sentiments only when they don't involve "life-and-death" issues, like a victorious baseball pitcher thanking God after the game-deemed quaint, but harmless by the public. But deciding whether or not to vaccinate is a serious medical decision. Should religious beliefs be the sole means available for parents to decline vaccination?

The definition of religion in the Random House Dictionary is: "Concern over what exists beyond the visible world, differentiated from philosophy in that it operates through "faith or intuition", rather than reason." A millennium ago, faith and intuition' explained most aspects of life. Today, reason and science have supplanted much of that. But while we are now left with less faith and are provided more science, straight facts about vaccination appear to have a minor influence on most parents. Doctors often complain that all the facts they bring to bear on some parents fails to persuade them to vaccinate. That is because facts must conform to people's already developed system of beliefs-i.e., their overall philosophy of life, much of which includes aspects of "faith and intuition". If new facts don't conform to people's belief systems, then it's the facts that are rejected, and not their core belief systems. How else can anything other than strongly held, insurmountable core beliefs allow parents to face public ostracism, by standing against such a widely-supported public health measure?

A Natural Hygienist, for example, believes that disease is not an inevitable part of life; that it depends on how you live and eat, and not who coughs in your direction. Or, as Pidoux said to Pasteur's annoyance"Disease is born of us and in us". Conversely, doctors are taught that disease is more a function of the germ, than the health of the host. Their preference for artificial prophylaxis (vaccination) is a manifestation of their beliefs, and the facts that they subsequently accept or reject is directly influenced by the medical theory they learned in school.

Although we don't admit it, we act on our beliefs. "Mere" facts are either accepted or rejected.

In March of 200l, in taking notice of the state's claim that a parent's objection to vaccination was based on medical aspects, and not religious, the Wyoming Supreme Court asked rhetorically, "If parents have not consistently expressed those religious beliefs over time, should they be denied an exemption? Can parents have beliefs that are both philosophical and religious without disqualifying their exemption request?" Acknowledging the State's concern with "improper evasion" of the vaccination law, the Court wrote, "we are confident in our presumption that parents act in the best interest of their children's physical, as well as their spiritual health."

LEGISLATIVE HISTORY: 2009-10 - S.2377/A.4886 2007/08 - S.3031/A.5468 2005/06 - S.305 2003/04 - S.695/A.10326 2001/02 - S.7111

FISCAL IMPLICATIONS: If enacted, funds previously spent on screening applicants for the religious exemption and possible appeals, would be retained by the Department of Education. Similarly, local school districts would not face litigation expenses.

EFFECTIVE DATE: Immediate.


Text

STATE OF NEW YORK ________________________________________________________________________ 1331 2011-2012 Regular Sessions IN SENATE January 6, 2011 ___________
Introduced by Sen. DILAN -- read twice and ordered printed, and when printed to be committed to the Committee on Health AN ACT to amend the public health law, in relation to enacting the "philosophical exemption to immunizations act" THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. This act shall be known and may be cited as the "philosoph- ical exemption to immunizations act". S 2. Subdivision 6 of section 2164 of the public health law, as amended by chapter 189 of the laws of 2006, is amended to read as follows: 6. In the event that a person in parental relation to a child makes application for admission of such child to a school or has a child attending school and there exists no certificate or other acceptable evidence of the child's immunization against poliomyelitis, mumps, measles, diphtheria, rubella, varicella, hepatitis B, pertussis, teta- nus, and, where applicable, Haemophilus influenzae type b (Hib) and pneumococcal disease, the principal, teacher, owner or person in charge of the school shall inform such person of the necessity to have the child immunized, that such immunization may be administered by any health practitioner, or that the child may be immunized without charge by the health officer in the county where the child resides, if such person executes a consent therefor AND PROVIDE A FORM CITING OTHER OPTIONS OF COMPLIANCE AS NOTED IN THIS SECTION. In the event that such person does not wish to select a health practitioner to administer the immunization, [he or she shall be provided with a form which] THE PROVIDED FORM shall give notice that as a prerequisite to processing the application for admission to, or for continued attendance at, the school such person shall state a valid reason for withholding consent, OR CHECK A FIXED STATEMENT PRE-PRINTED ON THE FORM INDICATING HIS OR HER PERSONAL OBJECTION TO IMMUNIZATIONS, MEDICAL TESTING AND TREATMENTS or consent
shall be given for immunization to be administered by a health officer in the public employ, or by a school physician or nurse. The form shall provide for the execution of a consent by such person and it shall also state that such person need not execute such consent if subdivision eight or nine of this section apply to such child. S 3. The opening paragraph of subdivision 8-a of section 2164 of the public health law, as amended by chapter 189 of the laws of 2006, is amended to read as follows: Whenever a child has been refused admission to, or continued attend- ance at, a school as provided for in subdivision seven of this section because there exists no certificate provided for in subdivision five of this section or other acceptable evidence of the child's immunization against poliomyelitis, mumps, measles, diphtheria, rubella, varicella, hepatitis B, pertussis, tetanus, and, where applicable, Haemophilus influenzae type b (Hib) and pneumococcal disease, OR OTHER EVIDENCE OF COMPLIANCE AS NOTED IN THIS SECTION, the principal, teacher, owner or person in charge of the school shall: S 4. Subdivision 9 of section 2164 of the public health law, as sepa- rately amended by chapters 405 and 538 of the laws of 1989, is amended to read as follows: 9. This section shall not apply to children whose parent, parents, or guardian hold PERSONAL OBJECTIONS OR genuine and sincere religious beliefs which are contrary to the practices herein required, and no certificate OF IMMUNIZATION, MEDICAL TESTS AND TREATMENTS shall be required as a prerequisite to such children being admitted or received into school or attending school. S 5. Subdivision 6 of section 2165 of the public health law, as added by chapter 405 of the laws of 1989, is amended to read as follows: 6. In the event that a student registers at an institution and has not complied with subdivision two of this section, the institution shall inform such student of the necessity to be immunized, that such immuni- zation may be administered by any health practitioner, or that the student may be immunized without charge by the health officer in the county where the student resides or in which the institution is located, AND PROVIDE A FORM CITING THE OTHER OPTIONS OF COMPLIANCE AS NOTED IN THIS SECTION. In the event that such student does not comply with this section, he or she shall be given notice that attendance at the institu- tion requires immunization unless a valid reason is provided by such student pursuant to subdivision eight or nine of this section OR UNLESS SUCH STUDENT HAS CHECKED A FIXED STATEMENT PRE-PRINTED ON THE FORM INDI- CATING A PERSONAL OBJECTION TO IMMUNIZATIONS, MEDICAL TESTING AND TREAT- MENTS. S 6. Subdivision 9 of section 2165 of the public health law, as added by chapter 405 of the laws of 1989, is amended to read as follows: 9. This section shall not apply to a person who holds PERSONAL OBJECTIONS OR genuine and sincere religious beliefs which are contrary to the practices herein required, and no certificate OF IMMUNIZATION, MEDICAL TESTS AND TREATMENTS shall be required as a prerequisite to such person being admitted or received into or attending an institution. S 7. This act shall take effect immediately.

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