How to Beat Back-to-School Vaccine Bullies

What do you do when your school ignores what statute requires for a vaccine exemption and asks you to complete a new form from the health department, loaded with Personally Identifying Information (PII) for inclusion in a state registry? What if the form contains compelled speech that you are putting your child and the public at risk? What if the new form process requires you to be re-educated on the benefits of vaccines, lacking any risk information? This has been an ongoing battle in Colorado, Michigan, and many other states. Also see “Colorado Exemption Law…what you can do…”

First, you can try to educate your school nurse or administrator with a copy of your state statute. (NVIC state exemption law). Colorado only requires a parent to give the school a “statement of exemption” for personal and religious exemptions and “certification from a licensed doctor” for medical exemptions. Colorado does not require a parent to give the health department, CDPHE, any vaccine records or form. And parents who were misled by school nurses to use the form have reported that their PII was shared with the state immunization database, CIIS, without their consent and in violation of FERPA. Schools are bound by FERPA to protect the privacy of student records, including vaccine records, and are only allowed to share records with prior written parental consent. However, prior to educating your school, decide if it is ignorance of the law or harassment and/or collusion with the health department. If it is the latter, get all directives in writing.

As a side note regarding vaccine databases, it is not in anyone’s best interest to be included in a state Immunization Information System database (IIS) which has powers to implement reminders, recalls, and home visits. IIS systems claim “confidentially” under HIPAA, which allows sharing those records with a long list of undisclosed entities. Even as a state immunization stakeholder, I have requested that my state health department and board of health answer eleven transparency questions, including who the CIIS data is shared with, and I have been denied. The Board of Health refused to even refer to CIIS by name in their recent update to immunization policy rules, instead referring to it vaguely as the “immunization tracking system.” Why the lack of transparency? Because the CDC’s IIS Strategic Plan calls for all people’s (children and adults) vaccine records in a federal IIS by 2020 and accessible data anywhere in real time. There are serious implications for restricting people’s travel and work with an IIS, with the absence of explicit protections in statute. Hospitals are already using Vendor Access Control badges and Vender Credentialing Services which are ID reading systems which only allow building access for people who are current on vaccines, including the annual influenza vaccine. Nevertheless, pediatricians claim the IIS is critical to public health when the funding is at risk, alleging that parents lose shot records regularly so the database provides a backup. A safer backup document is the health record with your local doctor, where the patient has opted out of Heath Information Exchanges (HIE) like CORHIO in Colorado. (CORHIO is lead by Colorado’s Director of CDPHE, Dr. Larry Wolk, which is an alarming conflict of interest in that CORHIO benefits with the promotion of the “mandatory” use of online vaccine exemption forms that feed records into CIIS, and subsequently CORHIO for paid subscribers.)

One form of civil disobedience to consider if your school is not honoring your vaccine exemption rights according to state law is to boycott School Pupil Enrollment Count Day (page 4 for timeline, alternate dates at link) with the primary date of October 2, 2017 for Colorado. This is the date that schools take the official student enrollment count for per-student annual funding from the state. Colorado funds $6546 for each pupil. Some people might think this is too drastic, but it is unlikely that the 20,000 California medical refugees who moved to Colorado so that their children can claim exemptions and attend public school would think this boycott for schools infringing on the lawful right to exempt is too extreme. In 2016, schools started sending out expulsion letters to families with lawful exemptions after the Pupil Enrollment Count Day, and after funds were secured.

A second way in clarifying exemption rights, you can ask your state health department and/or department of education to communicate with school districts on what statute actually requires for an vaccine exemption for school entry. In Colorado, CDPHE has learned how to overrule statute and the public rule making process to use a newfound “administrative” power to create a new state exemption form for a state registry, and a new school-shaming database that encourages the public to check the aggregate exemption rates at any school in the state. Meanwhile the department of education, CDE, has repeatedly claimed that they cannot direct the information of schools to parents, despite clear misinformation provided by CDPHE to schools about state law requirements for exemptions. So CDPHE is giving guidance to schools with no such authority in statute to direct schools, and CDE is claiming it has no communication obligations to schools and yet is tasked to act as a link between schools and legislators. If you find yourself in this situation, do not waste time trying to get these agencies to support statute because they will waste your time deferring to AG lawyers to get clarification. This is a dodge, because longstanding statute from 1978 does not need clarification. The AG lawyers work for the governor and his agenda, not to defend the rights of citizens.

A third way to clarify vaccine exemption statute is to contact your state lawmakers. Lawmakers have powers to subpoena state agency officials and rescind the rules of state agencies. In Colorado, our lawmakers have yet to exercise these powers. Why? This game is really controlled by lawyers, and you need a judge to over rule the lawyers who support the agenda of the Governor and his appointed officials. My supportive state senator confirmed to me that it is the Governor’s agenda to increase vaccination rates, in a state that only has a 2% exemption rate. This brings clarity to why none of the previous efforts to uphold lawful exemption procedures were respected. In this 100% vaccinated goal, the health department this past year removed the three types of exemptions from the back of the Certificate of Immunization, and now stand in violation of statute that exemption rights must be explained every time vaccine requirements are given.

The final way to clarify exemption statute, without an expensive lawsuit, is Judicial Review. Judicial Review is when the court reviews if a regulation or rule violates existing law. Any citizen can file for Judicial Review of a state agency rule in their district or county court. From my recent efforts to understand this legal process without a law background, Judicial Review is mainly used when a business or industry wants to challenge new restrictive regulations by a state agency. So do not expect your local courthouse clerks to have handled many Judicial Reviews because they routinely handle child support conflicts and traffic violations.

Judicial Review requires a few forms downloaded from your state’s court website, and costs about $300. It does not require an attorney, but an attorney or free legal advise from the weekly volunteer at the courthouse helps guide the process. In Colorado, Judicial Review initially requires a form JDF 610, which is a Complaint for Judicial Review in which a person can add documents as exhibits such as written communications from the health department and school that conflict with exemption statute. (No tabs for copying purposes.) It requires a JDF 601 District Civil Cover Sheet and also requires a JDF 1313, which is a Certificate of Service, swearing that the petitioner served a copy of the complaint to the Respondent(s), or Health Department and AG. The complaint costs $224 to file, and the service through the Sheriff’s office in the county where your state government is located costs $50. From there the petitioner can communicate to the judge with a generic “Motion to …” form JDF 76 as needed. The judge will communicate with the petitioner through the mail if he/she does not have an attorney. If you have an attorney, you can access all documents online through the court e-filing system with the case number.

In my case, I found that the court clerks’ service is similar to the quality of service at the DMV. I was given wrong procedural information three times, and every time I pointed to the clerks’ errors, the clerks had a trained response to say “We cannot give legal advice.” However, I know I had a good chance of winning my case because the AG lawyer who represents CDPHE called me and asked me to drop my case because CDPHE and CDE had drafted a joint memo in April of 2017, near the end of the school year, clarifying that the state form was not mandatory. There is no evidence that this memo was shared with any of the 179 school districts in Colorado because as the 2017-2018 school year has arrived, not one school district has the correct exemption requirements on their websites, and all schools are directing parents to use the CDPHE exemption forms. In the end, my case was dismissed because I lost “standing” as school closed in May, and theoretically the threat of expulsion for not being in compliance by using the state form was removed.

If I have to go through the process of Judicial Review again, I would write the complaint myself, and serve the papers through the Sheriff’s office, and then hire an attorney to procedurally ensure that a judge sees my case in a timely manner. As CDPHE now insists that the form is required for medical exemptions, it looks like I may get a second chance at Judicial Review this year. I will not ask my doctor to use the form and submit it to CDPHE, and subsequently risk his license, accreditation, or insurance network for writing a medical exemption. The law only requires his “certification” of medical contraindication and that can be provided in a letter.

In this school year, parents have to decide how long will they let the state health department chip away and undermine exemption rights. Consider adding it on your back to school to-do list as “defending my rights to public education.” Maybe it is time to throw your state health department under the bus of Judicial Review.

The court forms for Colorado can be found at: https://www.courts.state.co.us

The procedural timeline map for Judicial Review in Colorado can be found at Checkerboard, CO: https://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnxw bGVudHlnb2F0fGd4OjY5ZGMyOGE5ZWZlYWYyZWQ