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West Virginia Administrative Code
Agency 64 - HealthTitle 64 - LEGISLATIVE RULE WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES
Series 64-95 - Immunization Requirements and Recommendations for Children Attending School and Enrolled in State-Regulated Child Care
Section 64-95-17 - Eligibility Process

W. Va. Code R. § 64-95-17

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Current through Register Vol. XLI, No. 36, September 6, 2024
Section 64-95-17 - Eligibility Process
17.1.Request. A physician must complete a "Request for Medical Exemption from Compulsory Immunization" form available at the Department of Health and Human Resources Medical Exemption Resource Center website. The form may be accessed at the following link: http://www.dhhr.wv.gov/oeps/immunization/requirements/Documents/WV_Med_Exempt_Request_Form%20_11.20.13.pdf The application must include:
17.1.a. The name of the child for whom the request is made;
17.1.b. The date of birth of child for whom the request is made;
17.1.c. The name of the school the child attends and the county where the school is located;
17.1.d. The name(s) of the child's parent or guardian;
17.1.e. The address of the child's parent or guardian;
17.1.f. The name, address and telephone number of the physician making the request;
17.1.g. The specific vaccine or vaccines for which an exemption is requested;
17.1.h. An explanation of the medical contraindication or precaution relied upon to make the request;
17.1.i. Whether the request is for a permanent or temporary exemption;
17.1.j. Certification by the physician that the physical condition of the child is such that immunization is contraindicated or there exists a specific precaution to a particular vaccine. This certification must be supported by medical signs and laboratory findings; and
17.1.k. If a temporary exemption is indicated, the physician's opinion as to the date or period of time after which the exemption should be reevaluated.
17.2.Evidence. In general, the physician, on behalf of the child, has the burden of proving that an exemption is necessary. This means that the physician must furnish medical and other evidence that the Immunization Officer can use to reach conclusions about the need for an exemption.
17.2.a. Evidence is anything the physician submits to the Immunization Officer or that the Immunization Officer obtains that relates to the request for an exemption. This includes, but is not limited to:
17.2.a.1. Objective medical evidence, that is, medical signs and laboratory results; and
17.2.a.2. Other evidence from medical sources, such as medical history, opinions, and statements about treatment the child has received.
17.2.b.Physician's responsibility.
17.2.b.1. The physician must provide medical evidence showing that an exemption is necessary. The Immunization Officer will make reasonable efforts to notify the physician of any deficiencies in the request but it remains the responsibility of the physician to assure that the request is complete; and
17.2.b.2. The physician must inform the child's parent or guardian of the process for obtaining an exemption and the status of the request.
17.2.c.Immunization Officer's responsibility. Before making a determination as to whether an exemption should be granted, the Immunization Officer will review the evidence obtained from the physician. The Immunization Officer will make every reasonable effort to obtain relevant medical evidence from the physician.
17.2.d. Every reasonable effort means that the Immunization Officer will make an initial request for evidence from the physician and, at any time between 10 and 20 calendar days after the initial request, if the evidence has not been received, the Immunization Officer will make one follow-up request to obtain the medical evidence necessary to make a determination. The physician will have a minimum of 10 calendar days from the date of the follow-up request to reply, unless the Immunization Officer's experience with that physician indicates that a longer period is advisable in a particular case.
17.3.Preliminary Exemption. The Immunization Officer may grant a child a preliminary exemption if it appears that there is a substantial likelihood that the child will be eligible for a medical exemption, but that the medical evidence sufficient to support a medical exemption cannot be timely developed through no fault of the physician.
17.3.a.How a preliminary exemption is obtained. A preliminary exemption may be requested by a physician or may be granted without a request, by the Immunization Officer if the Immunization Officer finds that the medical evidence is insufficient to make a determination.
17.3.b.Findings necessary for preliminary exemption. In order to grant an applicant a preliminary exemption, the Immunization Officer must find that:
17.3.b.1. Sufficient medical evidence is not available;
17.3.b.2. Additional relevant medical evidence is obtainable;
17.3.b.3. Additional effort must be made to obtain relevant medical evidence;
17.3.b.4. It is not the fault of the physician that sufficient medical evidence is not available;
17.3.b.5. Because of the delay in obtaining relevant medical evidence, the child will miss a significant number of educational days if the preliminary exemption is not granted;
17.3.b.6. It is likely that little or no harm will result to the public if the preliminary exemption is granted; and
17.3.b.7. There is a substantial likelihood that the child will be eligible for an exemption once the relevant medical evidence is obtained.
17.3.c.Duration of a preliminary exemption. If a preliminary exemption is granted by the Immunization Officer, the preliminary exemption will remain in effect until the Immunization Officer makes a determination on the application for an exemption.
17.4. Determination of Eligibility. The immunization Officer must determine eligibility tor an exemption in accordance with the eligibility standard specified in section 16 and grant the certificate of exemption to any applicant determined eligible.
17.4.a. After the Immunization Officer reviews all of the evidence relevant to the application, including medical opinions, the Immunization Officer will make findings about what the evidence shows. In some situations, the Immunization Officer may not be able to make these findings because the evidence in the case record is insufficient or inconsistent. Evidence will be considered to be insufficient when it does not contain all the information needed to make a determination or decision. Evidence is considered to be inconsistent when it conflicts with other evidence, contains an internal conflict, is ambiguous, or when the medical evidence does not appear to be based on medically acceptable clinical or laboratory diagnostic techniques. If the evidence in the record is insufficient or inconsistent, the Immunization Officer may need to take additional actions, as explained in subdivisions c. and d. of this subsection.
17.4.b. If all of the evidence received by the Immunization Officer, including all medical opinion(s), is consistent and there is sufficient evidence for a determination of whether to grant an exemption, the Immunization Officer will make a determination or decision based on that evidence.
17.4.c. If any of the evidence in the record, including any medical opinion(s), is inconsistent, the Immunization Officer will weigh the relevant evidence and see whether a determination can be made based on the evidence obtained.
17.4.d. If the evidence is consistent, but the Immunization Officer has insufficient evidence to determine whether an exemption may be granted, or if after weighing the evidence the Immunization Officer determines that a conclusion cannot be reached about whether an exemption should be granted, the Immunization Officer will determine the best way to resolve the inconsistency or insufficiency. The action(s) taken by the Immunization Officer will depend on the nature of the inconsistency or insufficiency. The Immunization Officer will try to resolve the inconsistency or insufficiency by taking any one or more of the actions listed in paragraphs 17.4.d.1, 17.4.d.2, and 17.4.d.3. The Immunization Officer might not take all of the actions listed below. The Immunization Officer may also grant the applicant a preliminary exemption as described in subsection 17.3 until sufficient medical evidence is obtained. The Immunization Officer will consider any additional evidence received together with the evidence already obtained.
17.4.d.1. The Immunization Officer may re-contact the physician. If the Immunization Officer obtains medical evidence over the telephone, the telephone report will be sent to the Physician for review, signature, and return;
17.4.d.2. The Immunization Officer may request additional existing records; or
17.4.d.3. The Immunization Officer may request that the physician seek the opinion of a specialist.
17.4.e. When there are inconsistencies in the evidence that the Immunization Officer cannot resolve or when, despite efforts to obtain additional evidence, the evidence is insufficient to determine whether an exemption should be granted, the Immunization Officer will make a determination or decision based on the evidence available.
17.4.f. The Immunization Officer will make the determination or decision based upon the most recent guidance from the Advisory Committee on Immunization Practices (ACIP), the American Academy of Pediatrics (AAP), and the American Academy of Family Physicians (AAFP) with respect to medical contraindications or precautions for each vaccine.
17.5.Time Standards. A determination on an application for an exemption will be made within 20 days of receipt of a complete request for an exemption. A request that remains incomplete for 45 days will result in the denial of the request.
17.6.Notice of the Immunization Officer's Decision. The Immunization Officer will mail a written notice of the determination to the physician and the child's parent or guardian, at their last known address. The written notice will explain in simple and clear language the Immunization Officer's decision and the reasons for and the effect of the determination. If the Immunization Officer's determination is in whole or in part unfavorable, the written notice also will contain in understandable language a statement of the case setting forth the evidence on which the determination is based. The notice also will inform the child's parent or guardian of the right to request a review of the Immunization Officer's decision by the State Health Officer.
17.7.Documenting Exemptions. The Immunization Officer will ensure that that any exemption granted by the Immunization Officer is entered into the West Virginia Statewide Immunization Information System, Medical Exemption Module.
17.8.Review by the State Health Officer. If the Immunization Officer's determination is in whole or in part unfavorable, the child's parent or guardian may request a review of the Immunization Officer's decision by the State Health Officer.
17.8.a.How to request a review by the State Health Officer. A child's parent or guardian may request a review of the Immunization Officer's determination by filing a written request. A request form is available at the West Virginia Division of Immunization Services (DIS) website at the following link:

http://www.dhhr.wv.gov/oeps/immunization/Documents/Request%20for%20Appeal-ME-2013.pdf. The request should include:

17.8.a.1. The name and age of the child for whom the exemption is requested;
17.8.a.2. The name and address of the child's parent or guardian;
17.8.a.3. The reasons you disagree with the previous determination or decision; and
17.8.a.4. A statement of additional evidence to be submitted and the date you will submit it.
17.8.b.When and where to file. The request must be filed with the State Heakh Officer by U.S. Mail at 305 Capitol Street, Room 702, Charleston, West Virginia 25301; or email at VaccineExemption@wv.gov; or facsimile at 304-558-8736, within 30 days after the date the child's parent or guardian receives notice of the Immunization Officer's decision (or within the extended time period if an extension is granted as provided in paragraph 17.8.C.).
17.8.c.Extension of time to request a review. If the child's parent or guardian fails to request a review within 30 days after the date the child's parent or guardian receives notice of the Immunization Officer's determination or decision, the child's parent or guardian may ask for more time to make their request. The request for an extension of time must be in writing and it must give the reasons why the request for a review was not filed within the stated time period. A request for an extension may be filed by U.S. Mail, facsimile or email as provided by subdivision 17.8.b. If the child's parent or guardian shows that there is good cause for missing the deadline, the time period will be extended to permit the filing of a request for a review. In determining whether the applicant has shown good cause for missing a deadline to request for review the following will be considered:
17.8.c.1. What circumstances kept the child's parent or guardian from making the request on time;
17.8.c.2. Whether an action of the Bureau misled you; and
17.8.c.3. Whether the child's parent or guardian has any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which prevented the child's parent or guardian from filing a timely request or from understanding or knowing about the need to file a timely request for review.
17.8.d.Review procedures. If a request for a review is made, the child's parent or guardian will be given an opportunity to present any additional written evidence to the State Health Officer. The State Health Officer will then make a decision based on all of this evidence.
17.8.e.Review determination. After the child's parent or guardian requests a review of the determination of the Immunization Officer, the State Health Officer will review the evidence that the Immunization Officer considered in making the initial determination and any other evidence the State Health Officer receives. The State Health Officer may request additional information of the child's parent or guardian or the physician to complete the review and provide a decision. The State Health Officer will make a determination based on the preponderance of the evidence.
17.8.f.Time Standards. A determination on a request for a review of the Immunization Officer's determination will be made within 30 days of receipt of the request for review or, in the event the State Health Officer requests additional information from the child's parent or guardian or the physician, 30 days from the receipt of the requested information. Failure of the child's parent or guardian to submit requested information within 45 days of the receipt of the State Health Officer's request will result in the State Health Officer making a determination based on the evidence available.
17.8.g.Effect of the State Health Officer's review of the Immunization Officer's determination. The State Health Officer's review is binding unless the child's parent or guardian requests a hearing with 45 days of the receipt of the State Health Officer's notice of review, as required by the Rules for Contested Case Hearings and Declaratory Rulings, 64 CSR 1.
17.8.h.Notice of the State Health Officer's Review. The State Health Officer will mail a written notice of the Review of the Immunization Officer's determination to the applicant at their last known address. The State Health Officer will state the specific reasons for the determination and tell the child's parent or guardian of the right to a hearing.

W. Va. Code R. § 64-95-17