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November 2, 2015

Homeschoolers’ Immunization Information Sought after State Leans on Private Schools

Scott Woodruff Senior Counsel Scott Woodruff helps members and advocates for homeschool freedom in your state. He and his wife homeschooled their children.

Several homeschooling families whose children take some private school classes were surprised when their private school asked them for immunization information about their children. The private school staff said the Wisconsin Department of Health Services (DHS) was requiring them to collect the information so they could determine the overall immunization rate for the private school.

Here is some background information to help you make an informed decision about responding to such a request.

The collection of students’ immunization information is controlled by section 252.04 of the Wisconsin Code. Nothing in this section requires private schools to report any information to the DHS—either information about individual students or the overall immunization rate for all students in a school.

Despite having no statutory authority, DHS adopted a regulation requiring private schools to report immunization rates within the student body (regulations DHS 144.02(8) and 144.02(7)). Regulations exist to implement statutes—they are not permitted to expand the statutes. These DHS regulations clearly are out of line with the statutes, since the statutes place no reporting duty on private schools.

If your private school says they need information about your children’s immunizations so they can report the overall immunization rate to the state, you may want to consider rejecting the request (see sidebar), or perhaps encouraging your private school to challenge the DHS regulations that are out of line with state law.

DHS publication Wisconsin School Immunization Requirements 2015–2016 incorrectly states on page 4 that private schools must exclude students who do not comply (“exclusion is mandatory”) if the school’s overall compliance rate is under 99%. This demand is also out of line with state law.

The only provisions in state law that address the mandatory exclusion of students are in sections 252.04(5)(b)2 and (b)3. But these sections only make exclusion mandatory for “school districts”—meaning public schools. Private schools are not affected by those statutes. Instead, they are governed by 252.04(5)(b)1, which says that a private school has the option of excluding a non-complying student.

If your private school tells you they must exclude your student if you do not supply immunization information, you may want to point out to them that the DHS is clearly in error when it says that private schools must exclude non-complying students. At least one online private school decided to suspend collecting student immunization information after considering these issues and obtaining advice from their attorney.

On October 28 we faxed a letter to the DHS asking them to bring their practices into line with state law. On November 3, DHS acknowledged receipt of the letter and said they were working on a response.

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“Admitted” and “Excluded”

Wisconsin statute section 252.04(2) requires students who are “admitted” to a private school to submit their immunization to their school. We believe that the word “admitted” in this context is best understood to mean physically coming onto the premises—because an ill student who is physically present may infect another. We therefore question whether a student who participates in a private school program only over the internet is actually “admitted.”

Statute 252.05(6) requires schools with admitted students to send reminders to parents if they do not report their child’s immunization information to the school. But private schools are not required to take any particular action if a student does not comply. (According to this DHS memo, they should not report non-compliant students to the state or district attorney, notwithstanding section 252.04(6)).

Section 252.04(5)(b)1 permits—but does not require—a private school to “exclude” a student who does not comply. We believe that the word “exclude” in this context is best understood to mean to forbid the student from physically coming on the school premises—in order to prevent the spread of infection. Students who attend only by an online process cannot be “excluded” in this sense.

Failure to follow the immunization laws can result in a fine or a court order requiring a child to be immunized (section 252.04(6)). Waivers are available based on religious conviction, medical reason, or personal conviction.

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