S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6041
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 31, 2023
                                ___________
 
 Introduced by M. of A. DiPIETRO -- read once and referred to the Commit-
   tee on Health
 
 AN  ACT  to amend the public health law, in relation to allowing persons
   in parental relation to a child to choose to immunize such  child;  to
   amend the education law, in relation to making changes relating there-
   to;  and to repeal subdivision 6-a of section 310 of the education law
   relating thereto
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivisions  2, 3, 5 and 6 of section 2164 of the public
 health law, subdivisions 2, 3, and 5 as amended by chapter  401  of  the
 laws  of  2015,  subdivision  6  as amended by chapter 35 of the laws of
 2019, are amended to read as follows:
   2. [a.] Every person in parental relation to a  child  in  this  state
 shall  have  THE  CHOICE  TO HAVE administered to such child an adequate
 dose or doses of  an  immunizing  agent  against  poliomyelitis,  mumps,
 measles,  diphtheria,  rubella, varicella, Haemophilus influenzae type b
 (Hib), pertussis, tetanus, pneumococcal disease, and hepatitis B,  which
 meets  the standards approved by the United States public health service
 for such biological products, and which is approved  by  the  department
 under such conditions as may be specified by the public health council.
   [b. Every person in parental relation to a child in this state born on
 or  after January first, nineteen hundred ninety-four and entering sixth
 grade or a comparable age level special education program with an  unas-
 signed grade on or after September first, two thousand seven, shall have
 administered  to such child a booster immunization containing diphtheria
 and tetanus toxoids, and an acellular pertussis vaccine, which meets the
 standards approved by the United States public health service  for  such
 biological  products, and which is approved by the department under such
 conditions as may be specified by the public health council.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06808-01-3
 A. 6041                             2
              

   c. Every person in parental relation to a child in this state entering
 or having entered seventh grade and twelfth grade or  a  comparable  age
 level  special  education  program  with an unassigned grade on or after
 September first, two thousand sixteen, shall have administered  to  such
 child an adequate dose or doses of immunizing agents against meningococ-
 cal  disease  as  recommended  by the advisory committee on immunization
 practices of the centers for disease control and prevention, which meets
 the standards approved by the United States public  health  service  for
 such  biological products, and which is approved by the department under
 such conditions as may be specified by the public  health  and  planning
 council.]
   3.  The  person  in  parental  relation  to any such child who has not
 previously [received] CHOSEN FOR SUCH CHILD TO RECEIVE such immunization
 shall present the child to a health practitioner and request such health
 practitioner to administer the [necessary] immunization against  poliom-
 yelitis,  mumps,  measles,  diphtheria,  Haemophilus  influenzae  type b
 (Hib), rubella, varicella,  pertussis,  tetanus,  pneumococcal  disease,
 meningococcal disease, and hepatitis B as provided in subdivision two of
 this section.
   5.  The  health  practitioner  who  administers  such immunizing agent
 against poliomyelitis, mumps, measles, diphtheria, Haemophilus  influen-
 zae  type  b (Hib), rubella, varicella, pertussis, tetanus, pneumococcal
 disease, meningococcal disease, and hepatitis B to any such child  shall
 give  a  certificate  of  such  immunization  to  the person in parental
 relation to such child. IF ANY PERSON IN PARENTAL RELATION TO SUCH CHILD
 CHOOSES TO HAVE ADMINISTERED SUCH IMMUNIZATION, SUCH PERSON SHALL SUBMIT
 A CERTIFICATE OF SUCH IMMUNIZATION TO THE SCHOOL  TO  VERIFY  THAT  SUCH
 CHILD HAS RECEIVED THE RECOMMENDED IMMUNIZATION IF AN OUTBREAK DESCRIBED
 IN SUBDIVISION SEVEN OF THIS SECTION OCCURS.
   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),  menin-
 gococcal  disease,  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 immun-
 ized without charge by the health officer in the county where the  child
 resides,  if  such  person  executes a consent therefor] NO SCHOOL SHALL
 REQUIRE A CHILD TO RECEIVE IMMUNIZATION  AGAINST  POLIOMYELITIS,  MUMPS,
 MEASLES, DIPHTHERIA, HAEMOPHILUS INFLUENZAE TYPE B (HIB), RUBELLA, VARI-
 CELLA,  PERTUSSIS, TETANUS, PNEUMOCOCCAL DISEASE, MENINGOCOCCAL DISEASE,
 OR HEPATITIS B PRIOR TO BEING ADMITTED OR PENALIZE A CHILD BECAUSE  SUCH
 CHILD  HAS NOT RECEIVED THE RECOMMENDED IMMUNIZATIONS. In the event that
 such person does not wish to [select a health practitioner to administer
 the]  HAVE SUCH CHILD ADMINISTERED WITH AN immunization, he or she shall
 be provided with a form [which shall give notice that as a  prerequisite
 to processing the application for admission to, or for continued attend-
 ance at, the school such person shall state a valid reason for withhold-
 ing  consent  or  consent shall be given for immunization to be adminis-
 tered by a health officer in the public employ, or by a school physician
 or nurse] TO FILL OUT STATING SUCH PERSON'S  CHOICE  NOT  TO  HAVE  SUCH
 CHILD  ADMINISTERED  WITH  THE IMMUNIZATION. [The form shall provide for
 the execution of a consent by such person and it shall also  state  that
 A. 6041                             3

 such  person  need not execute such consent if subdivision eight of this
 section applies to such child.]
   §  2.  Subdivision  7  of  section  2164  of the public health law, as
 amended by chapter 401 of the laws  of  2015,  is  amended  to  read  as
 follows:
   7.  [(a)  No principal, teacher, owner or person in charge of a school
 shall permit any child to be admitted to such school, or to attend  such
 school, in excess of fourteen days, without the certificate provided for
 in subdivision five of this section or some other acceptable evidence of
 the child's immunization against poliomyelitis, mumps, measles, diphthe-
 ria,  rubella,  varicella,  hepatitis  B, pertussis, tetanus, and, where
 applicable, Haemophilus influenzae type b (Hib), meningococcal  disease,
 and  pneumococcal  disease;  provided, however, such fourteen day period
 may be extended to not more than thirty days for an  individual  student
 by  the  appropriate principal, teacher, owner or other person in charge
 where such student is transferring from  out-of-state  or  from  another
 country  and  can  show a good faith effort to get the necessary certif-
 ication or other evidence of immunization.
   (b) A parent, a guardian or any other person in parental  relationship
 to  a  child denied school entrance or attendance may appeal by petition
 to the commissioner of education in accordance with  the  provisions  of
 section  three  hundred  ten  of  the  education  law] A CHILD WHO LACKS
 CERTIFICATION OF IMMUNIZATION MAY BE EXCLUDED FROM SCHOOL ONLY  IF  SUCH
 CHILD  LACKS  AN  IMMUNIZATION  FOR  WHICH  THERE IS AN ACTIVE CASE OF A
 DISEASE IN THAT CHILD'S SCHOOL THAT  THE  IMMUNIZATION  IS  INTENDED  TO
 PREVENT  AND  THE  DEPARTMENT  OR LOCAL HEALTH AUTHORITY HAS DECLARED AN
 OUTBREAK OF THAT DISEASE FOR AN AREA THAT INCLUDES SUCH CHILD'S  SCHOOL.
 THE  DEPARTMENT  OR  LOCAL  DEPARTMENT OF HEALTH SHALL NOTIFY THE PROPER
 SCHOOL ADMINISTRATOR RESPONSIBLE FOR EXCLUDING SUCH  CHILD  FROM  SCHOOL
 ATTENDANCE UNDER THIS SUBDIVISION.
   §  3. Subdivisions 8 and 8-a of section 2164 of the public health law,
 as amended by chapter 401 of the laws of 2015, are  amended  and  a  new
 subdivision 9 is added to read as follows:
   8. If any physician licensed to practice medicine in this state certi-
 fies  that ANY such immunization may be detrimental to a child's health,
 [the requirements of this  section  shall  be  inapplicable  until  such
 immunization is found no longer to be detrimental to the child's health]
 SUCH  PHYSICIAN  SHALL GIVE A CERTIFICATE STATING WHICH IMMUNIZATION MAY
 BE DETRIMENTAL TO A CHILD'S HEALTH TO THE PERSON IN PARENTAL RELATION TO
 SUCH CHILD. THE PERSON IN PARENTAL RELATION TO SUCH CHILD  SHALL  SUBMIT
 SUCH  CERTIFICATE  TO  SUCH  CHILD'S  SCHOOL TO BE PLACED IN THE CHILD'S
 SCHOOL RECORD TO VERIFY SUCH CHILD HAS NOT RECEIVED SUCH IMMUNIZATION IF
 AN OUTBREAK DESCRIBED IN SUBDIVISION SEVEN OF THIS SECTION OCCURS.
   8-a. Whenever a child has [been refused  admission  to,  or  continued
 attendance  at,  a  school  as provided for in subdivision seven of this
 section because there exists] no certificate  OF  IMMUNIZATION  provided
 for  in subdivision five of this section or other acceptable evidence of
 the child's immunization against poliomyelitis, mumps, measles, diphthe-
 ria, rubella, varicella, hepatitis B,  pertussis,  tetanus,  and,  where
 applicable,  Haemophilus influenzae type b (Hib), meningococcal disease,
 and pneumococcal disease, the principal, teacher,  owner  or  person  in
 charge of the school shall:
   a.  forward  a  report of [such exclusion and] the name and address of
 such child WHO  HAS  COMPLETED  THE  RECOMMENDED  IMMUNIZATIONS  OR  HAS
 SUBMITTED  A CERTIFICATE STATING IMMUNIZATION MAY BE DETRIMENTAL TO SUCH
 CHILD'S HEALTH to the local health  authority  and  to  the  [person  in
 A. 6041                             4

 parental  relation  to  the  child  together  with a notification of the
 responsibility of such person under subdivision two of this section  and
 a  form  of  consent  as  prescribed  by regulation of the commissioner]
 DEPARTMENT, and
   b.  [provide,  with  the  cooperation  of the appropriate local health
 authority, for a time and place at which an immunizing agent  or  agents
 shall  be  administered, as required by subdivision two of this section,
 to a child for whom a consent has been obtained. Upon failure of a local
 health authority to cooperate in arranging for a time and place at which
 an immunizing agent or agents  shall  be  administered  as  required  by
 subdivision two of this section, the commissioner shall arrange for such
 administration and may recover the cost thereof from the amount of state
 aid  to  which  the  local health authority would otherwise be entitled]
 FORWARD A REPORT OF THE NAME AND ADDRESS  OF  SUCH  CHILD  WHO  HAS  NOT
 COMPLETED THE RECOMMENDED IMMUNIZATIONS AND HAS FILED THE REQUIRED FORM,
 PURSUANT TO SUBDIVISION SIX OF THIS SECTION, TO THE LOCAL HEALTH AUTHOR-
 ITY AND TO THE DEPARTMENT.
   9.  A  SCHOOL  AND  ITS  EMPLOYEES ARE IMMUNE FROM CIVIL LIABILITY FOR
 DECISIONS CONCERNING ADMITTING AND EXCLUDING A CHILD THAT ARE BASED ON A
 GOOD FAITH IMPLEMENTATION OF THE REQUIREMENTS OF  SUBDIVISION  SEVEN  OF
 THIS SECTION.
   § 4. Subdivision 6-a of section 310 of the education law is REPEALED.
   §  5. Subparagraph 1 of paragraph (b) of subdivision 5 of section 3208
 of the education law, as amended by chapter 352 of the laws of 2005,  is
 amended to read as follows:
   (1) A physical examination pursuant to the provisions of sections nine
 hundred  one, nine hundred three and nine hundred four of this chapter[,
 including proof  of  immunization  as  required  by  section  twenty-one
 hundred sixty-four of the public health law].
   §  6.  Subdivision 3 of section 3304 of the education law, as added by
 section 1 of part A of chapter 328 of the laws of 2014,  is  amended  to
 read as follows:
   3.  [Notwithstanding  any  provisions  of subdivision seven of section
 twenty-one hundred sixty-four of the public health law to the  contrary,
 compacting]  COMPACTING  states  shall give thirty days from the date of
 enrollment or within such time as is  reasonably  determined  under  the
 rules  promulgated  by  the  interstate  commission, for students trans-
 ferring from a school in a sending state  to  obtain  any  immunizations
 [required]  RECOMMENDED by the receiving state. [For a series of immuni-
 zations, initial vaccinations must be obtained  within  thirty  days  or
 within such time as is reasonably determined under the rules promulgated
 by the interstate commission.]
   §  7.  Paragraph  (l)  of  subdivision  1 of section 206 of the public
 health law, as added by chapter 207 of the laws of 2004, is  amended  to
 read as follows:
   (l)  establish  and operate such adult and child immunization programs
 as are necessary to prevent or minimize the spread  of  disease  and  to
 protect  the  public  health. Such programs may include the purchase and
 distribution of vaccines to providers and municipalities, the  operation
 of  public  immunization  programs,  quality  assurance for immunization
 related  activities  and  other  immunization  related  activities.  The
 commissioner  may  promulgate  such regulations as are necessary for the
 implementation of  this  paragraph.  Nothing  in  this  paragraph  shall
 authorize  mandatory  immunization  of  adults  or  children[, except as
 provided  in  sections  twenty-one  hundred  sixty-four  and  twenty-one
 hundred sixty-five of this chapter].
 A. 6041                             5
 
   §  8.  Paragraph (c) of subdivision 1 and subdivision 2 of section 613
 of the public health law, paragraph (c) of subdivision 1 as  amended  by
 section 24 of part E of chapter 56 of the laws of 2013, subdivision 2 as
 amended  by  chapter  538  of  the  laws of 1989, are amended to read as
 follows:
   (c)  The commissioner shall invite and encourage the active assistance
 and cooperation in such education activities of: the medical  societies,
 organizations  of  other  licensed  health  personnel, hospitals, corpo-
 rations subject to article  forty-three  of  the  insurance  law,  trade
 unions, trade associations, parents and teachers and their associations,
 organizations of child care resource and referral agencies, the media of
 mass communication, and such other voluntary groups and organizations of
 citizens  as  he  or  she  shall deem appropriate. The public health and
 health planning council, the department of education, the department  of
 family  assistance,  and  the department of mental hygiene shall provide
 the commissioner with such assistance in carrying out the program as  he
 or  she  shall  request. All other state agencies shall also render such
 assistance as the commissioner may reasonably require for this  program.
 Nothing  in  this  subdivision shall authorize mandatory immunization of
 adults or children[, except as provided in sections  twenty-one  hundred
 sixty-four and twenty-one hundred sixty-five of this chapter].
   2.  The  commissioner shall set such standards as he OR SHE shall deem
 necessary for the proper, safe,  and  efficient  administration  of  the
 program. He OR SHE shall direct an annual survey to determine the immun-
 ization level of children entering school, and shall conduct annually an
 audit  of such survey and an audit of the immunization level of children
 attending school. State aid provided by this article shall be reduced by
 ten percent, provided however that state aid for essential public health
 activities shall not be reduced, unless a municipality has submitted, in
 cooperation with local school districts, a plan within ninety days after
 the commissioner shall have certified to such municipality  the  results
 of  his  OR  HER  survey  of the immunization level of children entering
 schools in such local school districts. Such plan shall be submitted for
 the next ensuing school year and a subsequent plan  shall  be  submitted
 annually  thereafter  [for  assuring that immunizing agents are adminis-
 tered to pre-school children within a reasonable time prior to  but,  in
 any  event,  no  later  than their entrance into school, and to students
 generally, as required pursuant to section twenty-one hundred sixty-four
 of this chapter]. Such plan shall include the manner in which  immuniza-
 tion activities are coordinated among the local health authority and the
 school districts. Such reduction in state aid and the requirement that a
 municipality  submit an immunization plan shall not be applicable to any
 municipality where ninety percent  or  more  of  its  children  entering
 school  are  immunized. The determination of the percentage of immuniza-
 tion shall be made by the commissioner based upon his OR  HER  audit  of
 immunization surveys.
   §  9.  Paragraph  (f)  of  subdivision 5 of section 2168 of the public
 health law, as amended by chapter 35 of the laws of 2019, is amended  to
 read as follows:
   (f)  The immunization status of [children exempt from immunizations] A
 CHILD WHO ACQUIRES A CERTIFICATE STATING IMMUNIZATION MAY BE DETRIMENTAL
 TO SUCH CHILD'S HEALTH pursuant to subdivision eight of section  twenty-
 one  hundred  sixty-four  of  this title shall be reported by the health
 care provider.
   § 10. This act shall take effect on the ninetieth day after  it  shall
 have  become  a  law; provided, however, that the amendments to subpara-
 A. 6041                             6
 
 graph 1 of paragraph (b) of subdivision 5 of section 3208 of the  educa-
 tion  law  made by section five of this act shall not affect the expira-
 tion of such section and shall be deemed to expire therewith.