Articles Posted in Health Law

On February 26, 2020, the Centers for Disease Control and Prevention (CDC) confirmed the first case of community spread of COVID-19 in the United States. Since this patient had not traveled to Wuhan City, China or come in close contact with a known patient with COVID-19, this infection raised the possibility that COVID-19 was spreading undetected in the United States.

Two weeks later, any hope of that the UC Davis Medical Center patient was an isolated case vanished with the steady rise in COVID-19 confirmations that forced our county to implement increasingly restrictive measures. On March 9, 2020, Santa Clara County required the cancellation of mass gatherings of more than 1,000 persons. The San Jose Sharks played one more away game before the National Hockey League (NHL) postponed the remainder of the season.

On February 26, 2018, Texas¹ filed a complaint for declaratory and injunctive relief against the United States, the U.S. Department of Health and Human Services, and the U.S. Internal Revenue Service alleging that the Patient Protection and Affordable Care Act (a/k/a the Affordable Care Act or Obamacare) was unconstitutional. Six years earlier, in National Federation of Independent Business v. Sebelius, the U.S. Supreme Court upheld the individual mandate in the Affordable Care Act, which “require[d] most Americans to maintain ‘minimum essential’ health insurance coverage,” as a valid exercise of Congressional power under the Taxing Clause. The plaintiffs now argue that since Congress passed and President Trump signed into law the Tax Cuts and Jobs Act of 2017, which eliminated the tax penalty of the Affordable Care Act, the individual mandate is no longer a valid exercise of Congressional power under the Taxing Clause since removal of the tax penalty disconnects the individual mandate from the collection of taxes.

Plaintiffs further argued that without the individual mandate, the rest of the Affordable Care Act must fall since the individual mandate underpins the guaranteed-issue and community-rating requirements of the Affordable Care Act. The guaranteed-issue requirement prohibits health plans from denying coverage to applicants with pre-existing conditions. The community-rating requirement prohibits health insurers from charging higher premiums to persons with pre-existing conditions.

All states require children to be immunized or to be in the process of receiving immunizations against certain contagious diseases before a child care facility or a school may admit them. For each state, the immunization schedule may be found in the state code or its administrative regulations, usually in the sections governing education (for schools) or public health (for child care facilities). Besides specific vaccine requirements, these schedules may also refer to the schedules provided by the United States Department of Health and Human Services, American Academy of Family Physicians, or American Academy of Pediatrics.

Where states significantly differ is in their recognition of exemptions from vaccination. All states grant a medical exemption to children who cannot be immunized for health reasons. For example, the administration of a vaccine may be contraindicated in children who are allergic to a component of the vaccine or have a suppressed immune system. These exemptions are specific to the vaccine and health condition, and remain so long as the contraindication lasts.

Additionally, 48 states and the District of Columbia permit parents to claim a non-scientific exemption, such as if their religious tenets or practices conflict with immunization or if their personal, philosophical or moral beliefs are opposed to immunization. The lone holdouts are Mississippi and West Virginia. However, in the event of an outbreak, child care facilities and schools may exclude children who have not been vaccinated against the disease until the end of the outbreak.

Verdict offers some insightful analysis into the issue of religious exemptions:

• How to Craft a Religious Exemption Regime Guaranteed to Be Dangerous for Children:
  The Case of Idaho. By Professor Marci A. Hamilton.
• The Deep Roots of the Left/Right Anti-Vaxxer Coalition. By Professor Michael C. Dorf.
• The Vaccine for Pollyanna Attitudes Toward Public Health and Religious Beliefs:
  Religious Exemptions for Vaccinations and Medical Neglect Need to Be Repealed Now and the Federal Government (and the Insurance Industry) Need to Incentivize the States to Do So. By Professor Marci A. Hamilton.

Below, you will find links to state codes, statutes and regulations governing the immunization of children who attend day care, child care, elementary schools, private schools and colleges.