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IS THERE A (SHADE TREE) LAWYER IN THE HOUSE

Filed at 6:16 pm under by dcobranchi

I’m having a hard time interpreting NC’s homeschooling laws regarding vaccinations. First, the relevant homeschool laws:

§ 115C?564. Qualifications and requirements.

A home school shall make the election to operate under the qualifications of either Part 1 or Part 2 of this Article and shall meet the requirements of the Part elected, except that any requirement related to safety and sanitation inspections shall be waived if the school operates in a private residence and except that testing requirements in G.S. 115C?549 and G.S. 115C?557 shall be on an annual basis. (1987 (Reg. Sess., 1988), c. 891, s. 1.)

This says that we’re treated just like other non-public schools except for safety and sanitation inspections. Vaccination records are explicitly mentioned in two other sections:

§ 115C?548. Attendance; health and safety regulations.

Each private church school or school of religious charter shall make, and maintain annual attendance and disease immunization records for each pupil enrolled and regularly attending classes.

§ 115C?565. Requirements exclusive.

No [home]school which complies with this Part shall be subject to any other provision of law relating to education except requirements of law respecting immunization.

NC homeschoolers acknowledge that we have to maintain these immunization and attendance records. But what exactly are immunization records? That’s in another chapter:

§ 130A?155. Submission of certificate to child care facility, preschool and school authorities; record maintenance; reporting.

(a) No child shall attend a school (pre K?12), whether public, private or religious, a child care facility as defined in G.S. 110?86(3), unless a certificate of immunization indicating that the child has received the immunizations required by G.S. 130A?152 is presented to the school or facility. The parent, guardian, or responsible person must present a certificate of immunization on the child’s first day of attendance to the principal of the school or operator of the facility, as defined in G.S. 110?86(7). If a certificate of immunization is not presented on the first day, the principal or operator shall present a notice of deficiency to the parent, guardian or responsible person. The parent, guardian or responsible person shall have 30 calendar days from the first day of attendance to obtain the required immunization for the child. If the administration of vaccine in a series of doses given at medically approved intervals requires a period in excess of 30 calendar days, additional days upon certification by a physician may be allowed to obtain the required immunization. Upon termination of 30 calendar days or the extended period, the principal or operator shall not permit the child to attend the school or facility unless the required immunization has been obtained.

(b) The school or child care facility shall maintain on file immunization records for all children attending the school or facility which contain the information required for a certificate of immunization as specified in G.S. 130A?154. These certificates shall be open to inspection by the Department and the local health department during normal business hours. When a child transfers to another school or facility, the school or facility which the child previously attended shall, upon request, send a copy of the child’s immunization record at no charge to the school or facility to which the child has transferred.

(c) The school shall file an annual immunization report with the Department by November 1. The child care facility shall file an immunization report annually with the Department. The report shall be filed on forms prepared by the Department and shall state the number of children attending the school or facility, the number of children who had not obtained the required immunization within 30 days of their first attendance, the number of children who received a medical exemption and the number of children who received a religious exemption.

Noticeably absent from section (a) is “homeschool.” And that makes sense as we don’t file any kind of “immunization report” with the Health Department. So sections (a) and (c) don’t apply to homeschools. But what about Section (b)? The Department of Health doesn’t even know we exist. It seems that section (b) is also irrelevant. After all, what’s the point of maintaining records if no one has the authority to request them? The Division of non-public education is only authorized to request our testing records:

§ 115C?557

Each school shall make and maintain records of the results achieved by its students. For one year after the testing, all records shall be made available, subject to G.S. 115C?174.13, at the principal office of such school, at all reasonable times, for annual inspection by a duly authorized representative of the State of North Carolina. (1979, c. 505; 1981, c. 423, s. 1; 1987, c. 738, s. 180(b); 2004?199, s. 30(a).)

And one other thing– the religious exemption. Here’s where it gets completely ridiculous to try to apply these laws to homeschools:

§ 130A?157. Religious exemption.

If the bona fide religious beliefs of an adult or the parent, guardian or person in loco parentis of a child are contrary to the immunization requirements contained in this Chapter, the adult or the child shall be exempt from the requirements. Upon submission of a written statement of the bona fide religious beliefs and opposition to the immunization requirements, the person may attend the college, university, school or facility without presenting a certificate of immunization. (1957, c. 1357, s. 1; 1959, c. 177; 1965, c. 652; 1971, c. 191; 1979, c. 56, s. 1; 1983, c. 891, s. 2; 1985, c. 692, s. 2; 2002?179, s. 17.)

Upon written submission to whom? It’s got to be the school, since the school has to report each year how many students are there under a religious exemption. So we would have to submit a written statement to ourselves that we object to vaccinations for religious reasons? Again, this makes absolutely no sense. But NC homeschoolers talk about obtaining a religious exemption all the time. I’d argue that since § 130A?155 (a) doesn’t include homeschools, and since we are the schools to whom we would have to submit a statement, that this section simply can’t apply to homeschools.

So I’ve come to the conclusion that despite the explicit requirements in § 115C?548 and § 115C?565 to maintain immunization records the vaccination requirements just can’t be applied to homeschoolers.

Comments?

4 Responses to “IS THERE A (SHADE TREE) LAWYER IN THE HOUSE”


Comment by
don
August 23rd, 2008
at 10:24 pm

First – IANAL

Second – NC homeschooling laws seem poorly written to me.

Third – I think that in 115C-565, where it says “No school which complies with this Part shall be subject to any other provision of law relating to education except requirements of law respecting immunization.” they were just trying to make sure homeschoolers were getting immunizations. But rather than cross-referencing the specific immunization requirements they want home schools to meet, they just throw this generality out there. I would bet that the only thing you have to do is get your kids the required immunizations (listed in 130A-152) which are required for all kids in the state regardless of educational status, and keep a record of it as required in 115C (either Part 1 or 2, whichever you are operating under).

Every legislative session, I review proposed bills where I find things that are contrary to federal laws or other state laws. Sometimes legislators and their staffs do a good job at cross-checking things and other times they just throw stuff out there. (Hard to believe, huh?) I think 115C-565 is an example of just throwing it out there.


Comment by
Toni
August 24th, 2008
at 9:24 am

Nice work, Daryl.
This is so typical of Article 39, and very similar to the dead end I got to when digging into compulsory attendance regulations.


Comment by
Daryl Cobranchi
August 24th, 2008
at 9:49 am

Third – I think that in 115C-565, where it says “No school which complies with this Part shall be subject to any other provision of law relating to education except requirements of law respecting immunization.” they were just trying to make sure homeschoolers were getting immunizations. But rather than cross-referencing the specific immunization requirements they want home schools to meet, they just throw this generality out there. I would bet that the only thing you have to do is get your kids the required immunizations (listed in 130A-152) which are required for all kids in the state regardless of educational status, and keep a record of it as required in 115C (either Part 1 or 2, whichever you are operating under).

Yeah, except that the “punishment” for not getting your kids immunized is they can’t attend school (155 (a)) and then they’d be in violation of the compulsory attendance laws:

§ 115C?548. Attendance by a child at any school to which this Part relates and which complies with this Part shall satisfy the requirements of compulsory school attendance so long as the school operates on a regular schedule, excluding reasonable holidays and vacations, during at least nine calendar months of the year.

But 155 (a) doesn’t apply to homeschools. It’s so circular!

And I absolutely agree that the NC homeschool laws are poorly written. They were just grafted to the end of the private school regs with little (or no) thought as to whether or not the requirements made any sense for individual families operating in their own homes.


Comment by
don
August 24th, 2008
at 11:01 pm

“Yeah, except that the “punishment” for not getting your kids immunized is they can’t attend school (155 (a)) and then they’d be in violation of the compulsory attendance laws”

Well, if they don’t let your kids attend school, they can’t really say you’re in violation of the compulsory education laws, can they? OK, maybe they could since this is the government we’re talking about here.

Egad. Glad I don’t live in NC.