April 18, 1980
Dr. C. Richard Sears, Director
Special Services
Rapid City Schools
809 South Street
Rapid City, South Dakota 57701
Official Opinion No. 80-25
Student Immunizations
Dear Dr. Sears:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
Within our school district we have experienced different interpretations of the student immunization requirements as they pertain to a student being allowed to enter school.
Referring specifically to SDCL 13-28-7.1, page 117 of the 1979 pocket supplement to Volume 5, it appears clear that a pupil has the option of, prior to admission, presenting a certificate from a licensed physician stating that the pupil (a) has received or (b) is in the process of receiving the required immunizations.
The problem is that if option (b) is allowed, there is no regulation by which that individual must complete the immunization series. That is, does the certificate which indicates that the immunizations have begun allow attendance for six weeks, six months, all year?
Based on the above factual situation, you have asked the following questions:
QUESTIONS:
1. May a school district refuse admittance of a student who has a certificate by a licensed physician which says that immunizations have begun but are not complete?
2. If the answer to Question 1 is NO, what period of time is allowed the pupil in which to complete the immunization series?
SDCL 13-28-7.1 provides:
Any pupil entering school in this state, shall, prior to admission, be required to present the appropriate school authorities certification from a licensed physician that he has received a test for tuberculosis and is free from a contagious form of tuberculosis and he has received or is in the process of receiving adequate immunization against poliomyelitis, diphtheria, pertussis, rubeola, rubella, mumps, and tetanus, according to recommendations provided by the department of health. The department of health may modify or delete any of the required immunizations. As an alternative to the requirement for a physician's certification, the pupil may present:
(1) Certification from a licensed physician stating that the physical condition of the child would be such that a test or immunization would endanger his life or health; or
(2) A written statement signed by one parent or guardian that the child is an adherent to a religious doctrine whose teachings are opposed to such tests and immunizations; or
(3) A written statement signed by one parent or guardian requesting that the local health department give the test and immunization because the parents or guardians lack the means to pay for such tests and immunization.
The Department of Health may adopt reasonable rules, in accordance with chapter 1-26, to require compliance and documentation of adequate immunization, to define appropriate certification, and to specify standard procedure.
At the outset I direct your attention to Attorney General's Official Opinion 77-75, wherein my predecessor addressed the question of whether a child could be excluded from attending a public school if the provisions of SDCL 13-28-7.1 had not been complied with. In concluding that a child who had not complied with the provisions of the statute could be excluded from attending school, Attorney General Janklow emphasized the point that the school boards have general charge, direction and management of the schools pursuant to SDCL 13-8-39 and accordingly, the board would be justified in taking such action. The essence of the present question is whether a school board can establish a time limit within which a child who is in the process of receiving adequate immunizations must complete the series or else be excluded from school.
SDCL 13-28-7.3 empowers the Department of Health to enact rules to implement the statute; however, to date the Department has not done so. It is my opinion that in the absence of regulations by the Department of Health the school board in exercising its general supervisory control over the school could establish a reasonable time within which the immunizations must be completed. Under normal circumstances adoption of a 60-day period would not appear to be an unreasonable action on the part of the school board. If a child has had no immunizations prior to starting school, a 60-day requirement may not be a medically reasonable time to complete all immunizations. Consideration should be given to this unusual possibility in setting standards in this area.
IN RE QUESTION NO. 1:
It is my opinion that the school district may not initially refuse admittance of a student who has a certificate signed by a licensed physician indicating that the immunizations are in progress.
IN RE QUESTION NO. 2:
It is my opinion that the school board has the authority to adopt a reasonable period of time during which the pupil's immunization program must be completed.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
