RULES AND REGULATIONS
Title 22—EDUCATION
STATE BOARD OF EDUCATION
[ 22 PA. CODE CH. 11 ]
Nonimmunized Children
[47 Pa.B. 3091]
[Saturday, June 3, 2017]The State Board of Education (Board) amends Chapter 11 (relating to student attendance) to read as set forth in Annex A. Notice of proposed rulemaking was published at 46 Pa.B. 1806 (April 9, 2016).
Statutory Authority
The Board acts under the authority of sections 2603-B and 2604-B of the Public School Code of 1949 (24 P.S. §§ 26-2603-B and 26-2604-B).
Purpose
Section 11.20 (relating to nonimmunized children) is amended for clarity and for consistency with a final-form rulemaking of the Department of Health (Department) amending 28 Pa. Code Chapter 23, Subchapter C (relating to immunization).
Background
Currently, a child in this Commonwealth may not be admitted or permitted to attend school unless the child has met the immunization requirements established by the Department, which also provide for medical or religious exemptions from immunizations. On October 20, 2016, the Independent Regulatory Review Commission (IRRC) approved the Department's final-form rulemaking that amended the immunization requirements in 28 Pa. Code Chapter 23, Subchapter C. Section 11.20(a) contains related provisions that address the attendance of nonimmunized children. In early 2016, the Board undertook an effort parallel to that of the Department to amend the Board's regulations for consistency with amendments by the Department to the immunization requirements in 28 Pa. Code Chapter 23, Subchapter C.
Following an informational briefing from the Department on January 13, 2016, and a public hearing convened by the Board on March 9, 2016, the Board's proposed rulemaking was published at 46 Pa.B. 1806, with a 30-day public comment period. In preparing this final-form rulemaking, the Board reviewed and considered the public comments received and the Department's final-form rulemaking amending 28 Pa. Code Chapter 23, Subchapter C published at 47 Pa.B. 1300 (March 4, 2017). This final-form rulemaking was adopted at the Board's public meeting on January 12, 2017.
Public Comments on Proposed Rulemaking
Public comments on the proposed rulemaking largely were duplicative of the public comments submitted on the companion proposed rulemaking of the Department published at 46 Pa.B. 1798 (April 9, 2016), and, in most instances, reflected comments submitted to the Board and the Department. Those comments substantively fell within the purview of the Department's rulemaking and expertise, and those comments were addressed and responded to by the Department in the preamble of the final-form rulemaking published at 47 Pa.B. 1300.
The Board notes that a small number of comments involved issues that potentially questioned the Board's authority to promulgate this final-form rulemaking. In particular, one commentator stated that ''[t]he Department of Education is to Educate. (Period).'' The Board disagrees. Instead, the Board's authority, through its Council of Basic Education, includes the formulation of policy proposals ''in all educational areas,'' relating to Basic Education, specifically including ''admission, attendance, graduation and other separation requirements.'' This final-form rulemaking specifically implements admission and attendance requirements, and therefore is expressly within the Board's purview.
Further, some commentators questioned the administrative burden that they believed would arise from the addition of a 12th grade meningococcal conjugate vaccine. The Board reviewed the Department's response to the concerns, and agrees with the Department that the burden would be outweighed by the prevention of meningitis, which has a fatality rate of approximately 10%.
Some commentators raised questions about medical privacy. One commentator asked how the Department and the Department of Education will protect medical privacy and ensure that children do not suffer the loss of privacy with the requirement of electronic reporting. With respect to the commentators' concerns about immunization record confidentiality within school districts, requirements regarding confidentiality in an educational setting are addressed by another law. Specifically, section 444 of the Family Educational Rights and Privacy Act of 1974 (FERPA) (20 U.S.C.A. § 1232g) protects a student's privacy. Issues regarding whether a school district has complied with FERPA would be best addressed by the Family Policy Compliance Office within the United States Department of Education. Finally, with respect to comments regarding the transmission of immunization data, the regulations do not request or require that school districts share individually identifiable immunization information with the Board or with the Department of Education.
Some commentators argued that the regulation should require school districts to use ''standardized language'' in communications regarding vaccine requirements. The Board disagrees. Instead, local school districts are in the best position to determine how best to communicate the requirements in this final-form rulemaking to parents in their districts.
The Board notes comments submitted by the Pennsylvania State Education Association (PSEA). PSEA commented in support of most provisions of this final-form rulemaking. Notably, PSEA expressed concern that the effective date of the proposed rulemaking did not provide school districts with sufficient opportunity to prepare for its implementation. In response, the Department and the Board amended the effective dates of the final-form rulemakings and they are effective for the 2017-2018 school year.
An introductory cover letter to the public comments submitted by the Pennsylvania Association of School Administrators requested that the Board provide clarification on the responsibilities of public school entities, if any, related to whether school entities are required to convene an individualized education program (IEP) team to approve a change in placement for IEP students who are excluded for more than 10 days and whether school entities have an obligation to provide continuing education services to special education students who are excluded from school because they are not fully immunized. To provide clarification to school entities on these issues, the Department of Education will issue guidance to the field on requirements regarding continuing education and the convening of IEP teams to approve a change in placement as they pertain to the exclusion of students who are not fully immunized.
The Board also received comments from IRRC that raised a procedural concern about the promulgation of the Board's proposed rulemaking simultaneous with the proposed rulemaking of the Department. IRRC expressed concern regarding clarity and implementation of this final-form rulemaking as the proposed rulemaking included a reference to ''temporary waivers'' that were proposed, but not yet finalized, in the Department's rulemaking amending 28 Pa. Code Chapter 23, Subchapter C. IRRC stated that the Board's final-form rulemaking should not be submitted for review until after the Department's final-form rulemaking was published in the Pennsylvania Bulletin and temporary waivers are established in regulation. The Board heeded the comments received from IRRC and transmitted this final-form rulemaking for review after IRRC's approval of the Department's final-form rulemaking.
Provisions of this Final-Form Rulemaking
This final-form rulemaking makes clarifying amendments to § 11.20(a). The amendments delete language that is duplicative to requirements established by the Department in 28 Pa. Code § 23.84 (relating to exemption from immunization) and maintain the requirement for students to comply with the immunization regulations established by the Department to be admitted or permitted to attend school. Further, the amendments allow a student who is unable to provide documentation of full immunization to attend a public, private, nonpublic, special education or vocational school under certain circumstances when the Secretary of Health issues a temporary waiver of the immunization requirements. The reference to a temporary waiver is added for consistency with new provisions in 28 Pa. Code Chapter 23, Subchapter C that allow the Secretary of Health to issue a temporary waiver to immunization requirements in the event of a Nationwide vaccine shortage or in the event of a disaster.
Former § 11.20(b) is deleted to eliminate duplication with requirements established by the Department in 28 Pa. Code Chapter 23, Subchapter C, which is cross-referenced in § 11.20(a). Former § 11.20(c) is renumbered as § 11.20(b) in this final-form rulemaking.
Affected Parties
This final-form rulemaking will affect public, private, parochial and nonpublic schools, including vocational schools, intermediate units, and special education and home education programs, cyber and charter schools, and their employees. This final-form rulemaking also will affect citizens of this Commonwealth with school-aged children and their children.
Cost and Paperwork Estimates
This final-form rulemaking makes amendments for clarity and for consistency with recently-approved amendments to 28 Pa. Code Chapter 23, Subchapter C. The Board's regulations in and of themselves do not establish new requirements that carry an additional cost or create new paperwork requirements for the regulated community.
Effective Date
This final-form rulemaking will be effective on August 1, 2017. This will allow parents, guardians and schools time to become familiar with the requirements, prepare for their implementation and obtain the required vaccinations prior to the start of the 2017-2018 school year.
Sunset Date
The Board will review the effectiveness of § 11.20 every 4 years in accordance with the Board's policy and practice respecting its regulations. Therefore, a sunset date is not necessary.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on March 29, 2016, the Board submitted a copy of the notice of proposed rulemaking, published at 46 Pa.B. 1806, to IRRC and the Chairpersons of the House and Senate Committees on Education for review and comment. As a courtesy, at the same time the Board also delivered a copy of the notice of proposed rulemaking to the House Health and Human Services Committee and the Senate Public Health and Welfare Committee.
Under section 5(c) of the Regulatory Review Act, the Board shall submit to IRRC and the House and Senate Committees copies of comments received during the public comment period, as well as other documents when requested. In preparing this final-form rulemaking, the Board has considered all comments from IRRC, the House and Senate Committees, and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)), on April 19, 2017, this final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on April 20, 2017, and approved this final-form rulemaking.
Contact Person
For information about this final-form rulemaking, contact Karen Molchanow, Executive Director, State Board of Education, 333 Market Street, Harrisburg, PA 17126-0333, (717) 787-3787.
Findings
The Board finds that:
(1) Public notice of the intention to adopt this final-form rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P.L. 769, No. 240) (45 P.S. §§ 1201 and 1202), and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) This final-form rulemaking is necessary and appropriate for the administration of the Public School Code of 1949 (24 P.S. §§ 1-101—27-2702).
Order
The Board, acting under the authorizing statute, orders that:
(a) The regulations of the Board, 22 Pa. Code Chapter 11, are amended by amending § 11.20 to read as set forth in Annex A.
(b) The Chairperson of the Board will submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form as required by law.
(c) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect August 1, 2017.
KAREN MOLCHANOW,
Executive Director(Editor's Note: See 47 Pa.B. 2684 (May 6, 2017) for IRRC's approval order.)
Fiscal Note: Fiscal Note 6-336 remains valid for the final adoption of the subject regulation.
Annex A
TITLE 22. EDUCATION
PART I. STATE BOARD OF EDUCATION
Subpart A. MISCELLANEOUS PROVISIONS
CHAPTER 11. STUDENT ATTENDANCE
ADMISSION TO PUBLIC SCHOOLS § 11.20. Nonimmunized children.
(a) A child may not be admitted to or permitted to attend a public, private, nonpublic, special education or vocational school unless the immunization, exemption, temporary waiver or provisional admission requirements of the Department of Health in 28 Pa. Code Chapter 23, Subchapter C (relating to immunization) have been met.
(b) A child who has been admitted to school or permitted attendance in violation of this section may not be counted toward receipt of Commonwealth reimbursement for the period of the admission or attendance.
[Pa.B. Doc. No. 17-926. Filed for public inspection June 2, 2017, 9:00 a.m.]
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