MDHHS promulgated rule has led to widespread misinterpretation of laws surrounding Exemption for Vaccinations.

The following is a memo released 4/15/2025 By Dr. Remington Nevin, Medical Director for St. Clair County Health Department

MEMORANDUM FOR: Advisory Board of Health and Liz King, Health Officer, St. Clair County Health Department

FROM: Dr. Remington Nevin, Medical Director, St. Clair County Health Department SUBJECT: Laws and Regulations Pertaining to Immunization Exemptions

As described in my memorandum dated February 18, 2025, it is my intention to outline certain specific recommendations to improve the public’s trust in public health, including by expanding access to statutory immunization exemptions. In this memorandum, I outline current laws and regulations pertaining to immunization exemptions, and make recommendations to clarify and improve processes in this area, including through the adoption of new local health regulations

Since 1978, Michigan law, as codified in the Public Health Code, Part 92, Immunization (enclosed as Exhibit A) provides that parents, guardians, and persons in loco parentis (herein referred to for brevity as “parents”) may choose to exempt their children from the state’s mandatory immunization requirements in the case of “religious convictions” or “other objection” to immunization. MCL 333.9215(2).

Absent such an exemption, parents are required to “provide for the child’s immunization”, “for diseases and within an age period prescribed by the department [i.e., Michigan Department of Health and Human Services (MDHHS)],” per rules promulgated by MDHHS. MCL 333.9205; MCL 333.9227. Absent such an exemption, a parent’s failure to “provide for the child’s immunization” in accordance with such rules is a misdemeanor. MCL 333.9229.

Under the Public Health Code, a parent secures an exemption from the immunization requirements of Part 92 merely by presenting “a written statement” to the administrator of the child’s school or operator of the group program (herein referred to as “school” for brevity), “to the effect that the requirements of this part [for mandatory immunization] cannot be met because of religious convictions or other objection to immunization.” MCL 333.9215(2).

Likewise, under the Public Health Code, a parent applying to have a child registered for the first time in a school, or a parent of a child entering the seventh grade, must present such a “statement of exemption” to school officials for their child to be permitted to enter or attend school. MCL 333.9208. Similarly, under the Revised School Code, Section 1170 (enclosed as Exhibit B), a child enrolling in school for the first time, or enrolling in seventh grade for the first time, must present a “statement signed by a parent” that “the child has not been immunized because of religious convictions or other objection” to immunization. MCL 380.1177.

A Government of Service

Both the Public Health Code and the Revised School Code therefore establish that a parent secures an absolute and permanent exemption of their child from the requirements of mandatory immunization through the sole act of presenting an appropriate written statement to their child’s school. The written statement must state only that the requirements of Part 92 for mandatory immunization “cannot be met” including because of any “objection” to immunization, whether religious or “other”. Neither the Public Health Code nor the Revised School Code provide for any test of merit or test of validity of the parent’s “objection”, which can be for any religious or “other” reason.

Concerned at the high number of parents availing themselves of such statutory exemptions, and following several local health departments passing regulations imposing additional requirements to secure such an exemption, in 2014, the Michigan Department of Community Health (MDCH) – the state agency preceding MDHHS – proposed changes to the Michigan Administrative Code in Rule Set 2014- 073-CH, with the explicit aim of dissuading such exemptions through the administrative process. For example, in its Regulatory Impact Statement and Cost- Benefit Analysis (enclosed as Exhibit C), submitted during the rule-making process, MDCH noted concern that “[n]on-medical exemptions have increased in Michigan from 2% to 6% in recent years,” and noted further that “the ease of obtaining a non- medical exemption has been associated with an increased number of vaccine exemptions.”

The Michigan Administrative Code, R 325.176 (enclosed as Exhibit D) was subsequently amended in 2014 with the bolded text that follows:

(12) When presented with a medical exemption, religious or other exemption, the administrator of a child's school or operator of a child's group program shall recognize the exemption status of the child. Each nonmedical exemption filed at the child’s school or group program of a child entering a program after December 31, 2014 shall be certified by the local health department that the individual received education on the risks of not receiving the vaccines being waived and the benefits of vaccination to the individual and the community. All waivers shall be submitted using the waiver form prescribed by the department.

Prior to these changes, the pertinent sections of the Michigan Administrative Code applicable to vaccine exemptions had already defined “exemption” as a “waiver” of “specific immunization requirements for medical, religious, or other reasons”, and had already defined “other exemption” as a “written statement which is signed by the parent”, “which certifies that immunization is in conflict with” “other convictions of the signer”. R 325.176(1)(b); R 325.176(1)(d).

As the definition of “other exemption” in R 325.176(1) had already referred to objection to “immunization” in general, and as the text of MCL 333.9215(2) had also referred to such “objection to immunization” in general, even prior to the 2014 changes, an “exemption” was already understood as being applicable to all specific immunization requirements in the Michigan Administrative Code , for which specific individual vaccine-specific “waivers” were then administratively processed, including through local public health personnel making an entry in a central immunization database, such as the Michigan Care Improvement Registry (MCIR), MCL 333.9207.

Likewise, per the existing definitions in R 325.176(1), a “waiver” was already understood to represent the purely administrative processing, such as by an appropriate entry in the MCIR by local public health personnel, of the waiving of a specific immunization requirement, e.g., for varicella vaccine, as a result of the general exemption from all of the immunization requirements of the Public Health Code and the Revised School Code, as perfected by a parent through their written statement.

In other words, prior to the 2014 amendment to the Michigan Administrative Code, R 325.176(12), it was already understood that, in local health jurisdictions without regulations to the contrary, parents were to request and secure “exemptions” through the sole process of a written statement to the child’s school, and that local health departments were to then process “waivers” of the applicable immunization requirements upon notification of such an exemption having been perfected. Parents did not request “waivers”, nor was the active participation of a parent necessary for this purely administrative function.

The 2014 amendment to the Michigan Administrative Code, R 325.176(12), while introducing a requirement for local health departments to certify that education was provided to parents, did not alter this fundamental process. The rule imposed an additional obligation solely on the health department to ensure education is provided to parents, without mandating their active participation in this process. In this context, the submission of the “waiver form prescribed by the department”, referenced in the 2014 amendment, was understood to represent a purely internal activity to be completed solely by local health departments.

However, since its promulgation in 2014, the amendment to R 325.176(12) has been broadly misinterpreted and misconstrued by MDHHS and local health departments as placing additional requirements on the parent, including a requirement for attendance at a mandatory, in-person educational session prior to the exemption being recognized, and a requirement for the active completion or signing by the parent of this “waiver” form.

This interpretation is not supported by the actual text of the amendment, nor is it consistent with the administrative rule-making history, which more accurately interprets the rule as placing a separate, subsequent requirement solely on the local health department to provide education to the parent, using a variety of passive methods based on local needs, and for the local health department to internally complete a waiver form as an administrative function, only after a statutory exemption has already been recognized, without the further active participation of the parent.

Consistent with the format of the required education being at the discretion of the local health department, the initial Regulatory Impact Statement and Cost-Benefit Analysis submitted by MDCH during rule-making clearly noted that the proposed rule did not impose a requirement for attendance at a mandatory in-person educational session, and explicitly anticipated that “[l]ocal health departments (LHD) may use current immunization staff to provide parent education using a variety of methods based on local needs [emphasis added].”

As MDCH had specifically anticipated local health departments providing education “using a variety of methods based on local needs)”; and as the text of the rule itself is silent as to the method of education, the rule must be interpreted as leaving the method of education to the discretion of the local health department, in a passive manner otherwise consistent with the requirements of statute and regulation.

In this regard, a clear limitation on the method of education is that the local health department must provide this education in a manner that recognizes the parent legally perfects their exemption request solely upon presentation of a written letter to the “administrator of a child's school or operator of a child's group program”, who “shall recognize the exemption status of the child.” R 325.176(12).

Under R 325.176(12), the local health department’s requirement to certify that the requisite education has been provided can be met simply by sending a certified letter to the parent containing the necessary education.

As the rule provides no details on what the education is to consist of, other than “the risks of not receiving the vaccines being waived and the benefits of vaccination to the individual and the community”, R 325.176(12), this requirement can be met simply by the local health department explaining in the letter that in the event of a disease outbreak at the child’s school, that the “risks of not receiving the vaccines being waived” are the potential for the child’s temporary exclusion from school, in the event of a particular disease outbreak; and that the “benefits of vaccination to the individual and community” are that the child would not be subject to such exclusion, thus benefiting the individual child, their parent, and the broader community that might otherwise be inconvenienced as a result.

Such education aligns with the other content of the broader regulation, including R 325.175, which provides for the local health officer to exclude from school attendance “any individuals lacking documentation of immunity or otherwise considered susceptible to the disease.”

Under this interpretation, an unwritten assumption of the requirements of R 325.176 is that the administrator or operator of a local school, on their receipt of an exemption letter from a parent perfecting the child’s exemption, will necessarily inform the local public health department of this request, in order for the local health department to then subsequently administratively process the necessary “waiver” of the child’s individual vaccine requirements in MCIR. However, this assumption directly conflicts with existing federal law, including the Family Educational Rights and Privacy Act (FERPA), codified as 20 USC 1232g, and its associated regulations, 34 CFR

§ 99, which provide for protections from disclosure of “personally identifiable information” from “education records” without explicit parental consent, absent certain conditions being met.

Specifically, under the FERPA and its regulations, including 34 CFR § 99.30, a “statement of exemption” under MCL 333.9208 or MCL 333.9215(2), or a “statement signed by a parent” under MCL 380.1177 is exempt from disclosure to local health departments for the purposes of providing the required passive education, except in “connection with a health or safety emergency,” 34 CFR § 99.31(a)(10), absent the records being considered “directory information” per the definition in 34 CFR § 99.3.

Absent a specific state or local regulation defining exemptions as “directory information”, other sections of R 325.176 would likewise similarly conflict with the requirements of federal law. For example, although R 325.176(16) requires that a “principal of a school or operator of a group program shall make immunization records available for inspection by authorized representatives of the department or the appropriate local health department,” absent a “health or safety emergency” per 34 CFR § 99.31(a)(10), or absent the records being considered “directory information” per the definition in 34 CFR § 99.3, routine immunization records maintained exclusively by the school would be considered “education records”, exempt from routine disclosure.

Support for the confidentiality of routine vaccination and exemption information, absent a health or safety emergency, or a directory information exemption, comes from a joint Department of Education and Department of Justice guidance letter (excerpt enclosed as Exhibit E), which specifically states:

“ … immunization records, maintained by an educational agency or institution (such as by an elementary or secondary school nurse) would generally constitute education records subject to FERPA [emphasis added].”

In summary, Michigan state law establishes that that a parent secures an absolute and permanent exemption of their child from the requirements of mandatory immunization through the sole act of presenting an appropriate written statement to their child’s school, and that no further active participation of the parent is required to perfect this exemption. Michigan regulations further require that, upon the school’s receipt of a such a perfected exemption, a local public health department is to subsequently provide the parent certain passive education, without the further active participation of the parent, and that upon certification that this education has been passively provided, the local health department is to complete a “waiver” as a purely internal administrative function. However, federal law establishes that the written statement constituting the perfected exemption becomes a confidential educational record subject to the FERPA, and not subject to routine disclosures, including to local health departments.

Absent additional clarifying local or state regulations to permit disclosure under the FERPA, of exemption information received by a child’s school for the purposes of providing the required passive education under Michigan Administrative Code, R 325.176(12), the privacy protections of the FERPA preclude local health departments from receiving from the school the information needed to provide the mandated passive education, and to process the waiver as a purely internal administrative function.

I am therefore recommending to the Health Officer that the St. Clair County Health Department adopt local health regulations that provide substantially as follows:

Recommendation (1): Ensure that Health Department practices align with legislative intent by clarifying that, per R 325.176(12), a parent secures an absolute and permanent exemption of their child from the requirements of mandatory immunization through the sole act of presenting an appropriate written statement to their child’s school; that this exemption shall be recognized by the Health Department; and that subsequent completion of a waiver is a purely internal administrative function of the Health Department requiring no further active participation of the parent.

Recommendation (2): Define for the purposes of R 325.176(12) that the “risks of not receiving the vaccines being waived” are the potential for the child’s temporary exclusion from school, in the event of a particular disease outbreak; and that the “benefits of vaccination to the individual and community” are that the child would not be subject to such exclusion, thus benefiting the individual child, their parent, and the broader community.

Recommendation (3): Define for the purposes of R 325.176(12) that the certification required shall be met by the Health Department upon sending a certified letter to the child's parent containing the education above.

Recommendation (4): Reconcile the incompatible requirements of R 325.176(12) with state and federal law by defining vaccine exemptions as "directory information" subject to routine disclosure to the Health Department.

I anticipate that the adoption of these regulations will aid considerably in improving the public's trust in our immunization practices. I welcome the input of the Advisory Board of Health and of concerned residents in the further development and implementation of these recommendations.

Remington Nevin, MD, MPH, DrPH

Medical Director, St. Clair County Health Department Enclosures as described

Courtesy of www.legislature.mi.gov

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Vaxx exemption memo.pdf

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