Oppose S.2763 and H.4784 - 2 Proposed Bills in Massachusetts that Violate Basic Human rights, Medical Ethics, and Principles of Informed Consent.

On September 4, 2019, Senator Rebecca Rausch filed a bill titled “An Act Promoting Community Immunity” S.2763 and H.4784 (previously S. 2359/H. 4096) with Representative Paul Donato. The bill passed favorably through the Joint Committee on Public Health on 29 May 2020, with amendments. The “Community Immunity Act” is being advertised as a way to standardize and centralize immunization requirements, exemption and reporting processes, in part by transferring more administrative power to the Massachusetts Department of Public Health (DPH). It is important to note that current Massachusetts Laws, rules and regulations established by the State, already provide for standardization in both the public school and private program setting.

These bills would eliminate standardization by allowing private schools and programs, including camps, preschools, higher education and homeschool programs, the ability to set more stringent vaccine requirements than those set forth by the State. Additionally, the bill would make it legal for these private educational establishments to discriminate on the basis of a civil right. Families utilizing their free exercise of religion could be denied their choice of school just because of a single missing vaccine, such as HepB and possible future mandated vaccines including Covid-19. This is in direct conflict with all MA laws on public education and the MA public accommodations law, and violation of such law is punishable. The proposed bills are also in stark contrast to a history of Massachusetts laws that have concentrated on inclusivity for all of its students and people, striving to guarantee everyone equitable educational opportunities.

Education is an essential tool for every individual child. Access to any educational curriculum, or enhancements, should be equal in our State.

Health Choice 4 Action has identified several aspects of this bill that violate basic human rights, medical ethics, and principles of informed consent. These aspects are summarized below, and pertinent sections of the bill are included in parenthesis. Provisions in this bill would allow vaccination (or other preventative care) without parental consent, restrict access to education for special needs children, and limit religious freedom with respect to vaccination exemptions. This proposed legislation would increase the risk of discrimination and bullying for those who use medical and religious exemptions both in the school setting and at the Doctor’s office.

1. MINORS (OF NO DEFINED AGE) CAN CONSENT TO PREVENTATIVE CARE, INCLUDING VACCINATION, WITHOUT PARENTAL CONSENT OR KNOWLEDGE, AND WITH NO LEGAL RECOURSE.

• The amended bill still fundamentally alters the law with regard to minor consent to preventative care by making changes to MA General Law, Chapter 112, Section 12F, titled ‘Emergency Treatment of Minors’. Currently under this law, a minor of any age or ability, if he believes he is ‘suffering from or has come into contact with’ an infectious disease, is able to consent to diagnosis or treatment of such disease. The legislation proposes to alter the law to allow a minor to consent to preventative care for a disease if he believes he is ‘at risk of contracting’ the disease. There is no maturity test or minimum age threshold required in the law. Records of the care would be kept confidential from the parent unless released by the minor. The administering provider would not be required to have an established relationship with the child or consult their medical history. Records of this care will be kept confidential from parents, and the administering provider is protected from liability for providing this care. Outside of acute emergencies, a free, fair and democratic society does not allow doctors to make medical decisions without adequate medical history and informed consent. This is a severe encroachment on parental rights and violates federal informed consent laws and medical autonomy principles.

• Additionally, the modification of ‘Section 12F’ conflicts with federal law. The National Vaccine Injury Compensation Act of 1986 requires all health care providers, including those practicing in Massachusetts, to provide certain required information (in the form of Vaccine Information Statements approved by federal authorities) to the parent or guardian of a child prior to the administration of vaccines, not to a minor. Secondly and more egregiously, the rules of the U.S. Court of Federal Claims, which administers (through special masters) the Vaccine Injury Compensation Program created by the 1986 act, do not permit a minor to sue unless permitted under applicable state law. Under Massachusetts state law, minors are not permitted to sue in their own capacity. What does this mean? If a child were to be injured, they would have no legal recourse. (Section 6, 7)

2. APPROXIMATELY 6800 SERIOUS SPECIAL NEEDS STUDENTS RECEIVE EDUCATIONAL SERVICES FROM "766 SCHOOLS" (NAMED FOR THE EDUCATIONAL LAW PERTAINING TO THEM).

• “766 schools” are private schools serving students with severe disabilities who are unable to be educated within their school districts because of the severity of their disability (ex. autism, behavioral aggression, physical challenges). School districts refer students to 766 schools so that students can access highly specialized therapies and educational supports that local public schools simply cannot provide.

• Families coping with special needs already suffer extraordinary burdens and live with daily stressors that few can imagine. Parents of children with autism and other special needs have higher levels of depression and suicidal thinking. Teens and young adults with autism have higher levels of anxiety, depressive symptoms and completed suicide. These students and families need more support, not less. They are dependent on access to specialized education to improve communication, enhance self-regulation and improve daily living skills. Removing their access to education could have devastating consequences for students and families.

3. PRIVATE PROGRAMS CAN DENY ENTRY TO A CHILD, BASED SOLEY ON THE GROUND OF THEIR RELIGIOUS CREED.

• Private ‘covered programs’, including childcare facilities, schools, camps and other programs, may implement ‘more stringent’ immunization requirements, including accepting medical exemptions only. Current law does not allow private schools to operate in this capacity, and allowing them to do so could severely limit some families’ options for childcare, early education, specialized services, colleges and camps, many of which are private. MA should never legally allow private institutions to discriminate on the basis of civil or religious liberties, especially in a time where equity in education is so crucial. (Section 5l)

• Sincere religious beliefs are not confined to one party, race, ethnicity, national origin, socioeconomic status, disability, or political affiliation. People utilizing their free exercise of religion with an exemption to just one vaccination, including a potential vaccine for Covid-19, could be denied their choice of school.

• This bill would also allow private programs to specifically deny students without proof of compliance of the school vaccine schedule or those on catch up schedules who intend to comply but are not yet fully compliant. Someone moving from out of state, those immigrating to MA, communities where access to health care and insurance is low or feared, possible language barriers, undocumented immigrants, and other socioeconomic conditions are all factors that may disproportionately impact access to the aforementioned private programs. Education is an essential tool for every individual child. Access to any choice of educational curriculum, or enhancements. should be equal in our State.

• Marginalizing and stigmatizing families and children due to their inability to be in on-time compliance with the extensive required schedule or produce required documentation of immunization, or those with sincere religious belief exemptions goes against the very fabric of the state of Massachusetts.

4. PRIVATE PROGRAMS CAN CREATE FURTHER VACCINATION REQUIREMENTS IN ADDITION TO THE STATE RECOMMENDED SCHEDULE FOR ATTENDANCE (HPV, COVID)

• Additionally, the aforementioned provision in Item 2 would also allow private programs to mandate additional vaccinations not on the DPH schedule. Feasibly, these programs could require an annual flu shot, HPV or future COVID vaccine for school attendance. Current law authorizes DPH to create and maintain the required immunization schedule across all programs. Private programs should not be tasked with creating their own public health policies. (Section 5l)

5. RELIGIOUS EXEMPTION REQUIRES YOU TO SIGN A DOCUMENT THAT STATES YOU ARE PUTTING YOUR CHILD’S LIFE AT RISK.

• The amended bill requires the religious exemption to include a Department of Public Health (DPH) statement that reads ‘refusing to immunize is against public health policy and may result in serious illness or death of the participant or others.’ This statement conflicts with the beliefs of many utilizing the religious exemption and exposes families to future legal action. (Section 5f)

6. MEDICAL EXEMPTIONS WILL EXPLOIT HIPAA RIGHTS OF MEDICALLY-FRAGILE CHILDREN.

• In order to obtain a medical exemption from the DPH, all applications must include a statement of the health conditions of the participant substantiating the exemption. Current law does not require a statement of the reason for a medical exemption or submission of health records, and the government is not typically granted access to medical information of individuals outside of emergency situations. (Section 5e)

7. THE ELEVATED RISK PROGRAM WILL CREATE A CLIMATE OF FEAR, HATE, HARASSMENT AND DISCRIMINATION.

• ‘Elevated risk programs’ are designated as any program with any vaccination rate falling below herd immunity. They will be required to send notice of this status to parents of students and prospective students. Forced communication of ‘below herd’ vaccination rates will create an environment of unnecessary fear, and will lead to discrimination against, and bullying of, under-vaccinated children and families. This population of medically-fragile children and religious minorities should be protected from discrimination through heightened confidentiality, just as children with communicable diseases such as HIV or Hepatitis B are protected by law. (Section 5o)

8. DPH CAN CHANGE REQUIREMENTS FOR MEDICAL AND RELIGIOUS EXEMPTIONS WITHOUT LEGISLATIVE PROCESS.

• The amended bill still allows DPH to add additional elements to the medical and religious exemption forms at any time, allowing the department to fundamentally change what these exemptions require without a legislative process. The amended bill now includes some restrictions on elements requiring a religious description, but DPH could feasibly add other elements such as a signature from a religious leader, or further restrict medical exemptions. (Section 5g)

9. DOCTORS WILL BE TRACKED AND REQUIRED TO SIGN RELIGIOUS AND MEDICAL EXEMPTIONS THAT MAY LEAD THEM TO DISMISS THE PATIENT.

• Doctors would be required to sign both religious and medical exemption forms, giving the DPH the ability to track providers. Many Doctors will reject caring for under-vaccinated patients of faith for fear of professional repercussions. Doctors treating adversely affected, vulnerable patients, will be unwilling to sign the medical exemption form on the grounds of tracking and the potential impacts on their careers. Additionally, doctors are mandatory reporters of child neglect by law, and signing a document in which a parent has acknowledged putting their child at risk for illness or death would create a conflict of interest and potential liability for the doctor. (Section 5e, 5f)

10. COVID HAS RESTRICTED ACCESS TO IN PERSON MEETINGS AND CONTACT WITH LEGISLATORS.

• Many constituents were promised meetings with legislators if the bill were to progress, yet continue to have very limited access to their senators and representatives. The bill has received amendments that present new challenges that would be detrimental and must be addressed. COVID has intensified challenges for many families that would be further devastated by the proposed legislation. The State must seek to understand these experiences, as they mirror many of the hardships families would face if the proposed legislation were to pass. Massachusetts has also gained valuable knowledge pertaining to access to education during the pandemic that must be considered.

11. SIGNIFICANT ADMINISTRATIVE AND FINANCIAL INVESTMENTS WILL BE REQUIRED.

• This bill would require a significant financial investment at a time when state budgets are already in crisis. Administrative resources needed within DPH might include, but are not limited to, a department capable of processing 10K+ exemption applications each summer on an annual basis, a department to create educational resources and provide educational presentations to hundreds of programs, and undefined enforcement resources. This kind of investment is not warranted given the current extremely high immunization rates in the State, and proven quarantine and school exclusion protocols already in place.