Bluefield Daily Telegraph, Bluefield, WV

Local News

October 17, 2012

Lawsuit challenging W.Va. vaccine rule dismissed


CHARLESTON, W.Va. (AP) — A judge on Wednesday dismissed a lawsuit that challenged new vaccine requirements for schoolchildren, ruling that the Department of Health and Human Resources can impose them.

Kanawha County Circuit Judge Tod Kaufman said in his decision that the immunization rule is consistent with state code and does not exceed the Legislature's limits on interpretive rules. The lawsuit argued that the department cannot require additional vaccines without the Legislature's approval.

"The main reason for my clients' challenge in the first place was not addressed at all," said Delegate Patrick Lane, an attorney who filed the lawsuit on behalf of six families. "The crux of our argument, the basis of our complaint, is that DHHR did not follow the proper legislative procedures that are required by statute."

The Kanawha Republican said he anticipates that his clients will appeal.

State code requires children entering school for the first time to be immunized against diphtheria, polio, rubeola, tetanus and pertussis, or whooping cough.

Under the department's rule, incoming seventh-graders and 12th-graders must show proof they have received one dose of vaccines against meningitis, tetanus, diphtheria and pertussis. Incoming 12th-graders must show proof they received booster doses after age 16.

The vaccinations are recommended by the Centers for Disease Control and Prevention.

Booster shots for Tdap are necessary to meet the Legislature's directive to protect students from these diseases, Kaufman said.

He also said vaccination requirements for meningitis, as well as Hepatitis B and varicella, are valid under a state Board of Education rule. The school board, whose rules do not require legislative approval, requires students to be in compliance with the immunization schedule set by the Bureau of Public Health commissioner.

Kaufman noted that these vaccinations are recommended by the Advisory Committee on Immunization Practices, a 15-member group of experts selected by the U.S. Department of Health and Human Services secretary.

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