Through an audacious political maneuver, The Colorado Department of Public Health and Environment (CDPHE) is pushing a bill, HB 1164, attempting to hijack control of vaccine exemptions and force all families using a vaccine exemption to submit it online directly to them for their storage and use.
HB 1164 was introduced on 1/28/2016 and referred to the House Health, Insurance and Environment Committee . The first public hearing for HB 1164 is scheduled for 2/25/2016. This bill is sponsored by Representative Pabon, and Senators Aguilar and Martinez Humenik.
If HB 1164 passes, it would require parents of children attending public and private child care facilities, preschools, elementary or secondary schools through grade twelve and the majority of adult college students who want to delay or decline one or more of the vaccines to submit an exemption form directly to the Colorado Department of Public Health and Environment (CDPHE).
Current law requires parents of minor students and students over 18 to submit the exemption directly to the school where its use and disclosure is protected by the federal law FERPA (Family Educational Rights and Privacy Act). Under FERPA, public schools are required to get written consent from the parent before their child’s private information could be shared.
In the words of the sponsor of this offensive bill himself, Rep. Pabon:
“This is some of the most sensitive data that the government can collect.”
Unfortunately Representative Pabon has missed the connection that this is exactly why this information should not be handed over to anyone outside of the school without parental consent. CDPHE involvement in school and day care attendance requirements is unnecessary and invasive, and frankly, the last entity that families who utilize vaccine exemptions trust with this information is the state health department.
HB 1164 is a sneaky attempt to get around FERPA, which provides the only true privacy protection left for this most sensitive data from the prying hands of outside entities like the state health department.
Parents and individuals who have exercised their legal right to delay or exempt their child or themselves from one or more of the vaccines required for daycare, school or college do not want their most sensitive, personal medical information handed over to the state department of health.
1) Contact your own Colorado House Member and Senator and ask him/her to oppose HB 1164. To find out who represents you in the Colorado House and Senate you can register/login to the NVIC Advocacy Portal at http://NVICAdvocacy.org. Click on “Check What is Happening in Your State” on the home page or “My State” on the STATE TEAMS Tab. Your personal state legislators are listed on the right side of the page.
2) Prioritize your communication method. In-Person communications are the most effective. Make an appointment to meet with your legislators or their staff in person ASAP. If you can’t meet in person, make a phone appointment right away to discuss with your legislator or their staff assigned to these bills why your family is opposed to them. EVERYONE should be directly visiting or talking to their legislators or staff on the phone. Additionally, everyone needs to send an email voicing their opposition. If this issue is important to your family, please make the time for personal direct communication in addition to emailing.
3) Contact members of the House Health, Insurance and Environment Committee and ask them to VOTE NO on HB 1164. (see contact information and reasons to oppose below)
4) Plan on attending the hearing on Thursday, Feb. 25th at 1:30 pm in Room 0107. If you live in the Grand Junction or La Junta areas and are unable to attend the hearing on 2/25/16 you have the option to testify remotely at Colorado Mesa University in Grand Junction and Otero Junior College in La Junta. You need to register at least 24 hours in advance of the hearing. Testimony will be limited to 3 minutes. For more information and to register – http://www.leg.state.co.us/CLICS/WitnessR.nsf/Register.xsp
5) If you plan on attending or would like to testify against the bill and need more information, please contact your Colorado NVIC State Directors at CODirector14@NVICAdvocacy.org.
6) Login to the NVIC Advocacy Portal often to check for updates: http://NVICAdvocacy.org. Bills can change many times over the legislative process.
Contact information for the House Health, Insurance and Environment Committee:
Colorado: House Health, Insurance & Environment
Name – Position – Email – Capital Phone
Staff Contact: Amanda King
Phone: (303) 866-4332
REASONS WHY HB 1164 SHOULD BE OPPOSED: The state health department is trying to hijack control of vaccine exemptions for school and daycare attendance and force all families using a vaccine exemption to submit it online directly to them for their storage and use instead of directly to a school or daycare.
There is the potential for this private information to be abused:
- Immunization information systems like CIIS are being used for interventions including home visits, reminder and recall systems, community based interventions implemented in combination and standing orders.
- Vaccine tracking systems and other public health databases can be and have been used to harass those who have chosen to delay or decline vaccines.
- Data breaches happen frequently.
- HIPAA provides no protection as the so-called current “opt-out” from the Colorado Immunization Information System (CIIS) does not remove private information. The new database created by HB 1164 would put you in a separate, internal database and protecting “confidentiality” is not the same as protecting privacy. Once in the hands of CDPHE, because of permissions for unconsented disclosure for public health purposes authorized by HIPAA, this information could be used to identify and target individuals who are legally not vaccinated by choice for interventions and harassment. This information could also be used to discriminate against these families down the road or even integrated with the information in Colorado’s onerous vaccine tracking and enforcement system called the Colorado Immunization Information System (CIIS).
There is a lack of trust and transparency between CDPHE and parents who choose not to follow the one-size-fits-all vaccination schedule:
- The Colorado Dept. of Health has a history of trying to adopt rules that go beyond their legislative authority, including in 2011 when a workgroup tried to drastically change and restrict the exemptions provided by state law. It appears that the Colorado Department of Health has presumptuously already set in place the hijacking of the exemption process and implementation of the long standing state law by announcing these drastic changes in the Parent/Guardian FAQs posted on the web site even before HB 1164 has had a first hearing. 2014 HB 1288 required the health department to provide assistance to schools with the analysis and interpretation of the immunization data. It DID NOT give the health department the authority to create a new separate database and to hijack the current exemption process.
- In a recent state audit, the health department was found to have engaged in activity with the Colorado Children’s Immunization Coalition that was considered a conflict of interest. As reported by the Durango Herald on Jan. 26, 2016, Audit finds conflict of interest at state health department, the health department contracted with the Colorado Children’s Immunization Coalition awarding $1.8 million in contracts to the coalition from November 2008 through July 2015. From 2012 through 2014, more than half of the vendor’s revenue came from health department contracts. Given that department personnel were members of the vendor’s board, state auditors raised concerns about a conflict of interest. The Colorado Constitution states that government employees should avoid conflicts of interest to ensure that the state obtains maximum value.
- The disrespect and contempt for families exercising their legal right to a vaccine exemption demonstrated by supporters of bills like HB 1164 and HB 1288 in 2014 which created this mess, illustrate exactly why families don’t want CDPHE to have their school and daycare vaccine exemptions and identifying information associated with them.
HB 1164 violates privacy and federal law (FERPA). If HB 1164 passes there will be NO PRIVACY PROTECTIONS for this most sensitive data:
- Once the health department has possession of the exemption information, FERPA privacy protections no longer apply. Because CDPHE is considered a public health authority under HIPAA, they are authorized to use this private information once they have it for preventing or controlling disease and public health interventions without your knowledge or consent. CDPHE and CIIS are not covered entities under HIPAA, so HIPAA provides NO privacy protection for this information.
- The current opt-out system for the state vaccine surveillance database (CIIS) does not truly allow anyone to purge their record because personal information is permanently retained. If HB 1164 passes, exemption information also will be retained by the health department in a separate, internal CDPHE database. The result of this will be for families who don’t want to be tracked or receive vaccines is that their information will be stored in two separate databases without their consent.
- When CIIS was expanded to allow direct contact for reminders and recalls in 2005 and the again in 2007 to include adults, legislators refused to require prior written consent before information is put into the tracking system. Requiring prior written consent before any information is put into the system, or an “opt-in” system is the only way to ensure that the only people being tracked are those who want to and have given their permission. Once the schools hand over this information under HB 1164, it is gone and the parent has no control over what the health department does with it.
- Many parents do not even realize their child is already in the tracking system because it is populated without consent by the electronic birth certificate, practitioners, clinics, hospitals and health insurance plans. These entities are only required to inform you of your right to the so-called opt-out and that you have a right to exemptions, but most don’t even do that. The only time your prior written consent would be required is when schools covered under FERPA provide that information. If you are not sure if you or your child is already in the tracking system (CIIS), you can call them at 303-692-2437, option 2, or 1-888-611-9918, option 1.
HB 1164 is costly and unnecessary:
- 2014 HB 1288 required schools post vaccination and exemption rates on request. However, there was no fiscal note attached to the bill. It was stated that the work required by HB 1288 aligned with current department workload and no new appropriations were required. Now the department has asked for additional funding for the tracking system via HB 1247. As reported by The Denver Post, some legislators are looking for $1.35 million in the state budget to bolster vaccine programs, including a statewide vaccination registry.
- HB 1288 created the unnecessary burden for schools to provide this information without any funds to support it and now supporters of HB 1164 and the department of health want to take control of the very burden they have created. This is going to be costly and unnecessary. The rule that was adopted by the Colorado Board of Health on April 15, 2015 requires all religious and personal belief exemptions to be submitted every year, even though the only required vaccine for 7th through 12th grade in Colorado is a Tdap booster shot. Prior to kindergarten entry, a nonmedical exemption form must be submitted at each interval in the 2015 ACIP Birth-18 years immunization schedule when immunizations are due. Medical exemptions would also have to be submitted to the health department. This extra reporting requirement is designed to harass and make the process for parents utilizing exemptions more difficult.
- Supporters of HB 1288 that passed in 2014 argued that parents of immune compromised children wanted to know the exemption rates in schools. Exemption information for any given school does not give a parent of an immune compromised child all the information they need to decide if that school is a safe place for their child.
Some people are non-responders to some vaccines and vaccine effectiveness for some vaccines, especially for pertussis containing vaccines, wanes rapidly.
- Some students are provisionally enrolled and not fully vaccinated. Federal law, the McKinney-Vento Act, requires that homeless students be allowed to attend school without proof of immunizations.
- There are no requirements (and there shouldn’t be) that teachers, staff, and administration be vaccinated with the same childhood vaccine schedule.
- These all are people who are no different immunologically than a healthy student with a vaccine exemption and yet they represent a much larger percentage of the school population than the small number of students using a vaccine exemption targeted by this bill.
- On the other hand, students with active HIV infections are not only allowed to attend school, the confidentiality of their infection status is protected in state and federal law. Students infected with Hepatitis B and Hepatitis C also attend school without parents of other students being told.
- Students who are vaccinated with live viral vaccines experience viral shedding and can infect susceptible individuals for a period of several weeks post vaccination and yet no notices are published in schools and classrooms warning of viral shedding of recently vaccinated students.
- Some people who are vaccinated still get the illness (vaccine failures) while some have subclinical infections and can still transmit vaccine preventable diseases and not show symptoms because the vaccine suppresses them.
- Nothing is being done to disclose these real risks to families of immune compromised children.
The bottom line is 2014 HB 1288 should have never been passed because it doesn’t give any useful information on keeping children safe in schools while it isolates and marginalizes healthy children whose parents don’t agree with all government mandated vaccines by focusing schools and parents on misleading and incomplete information. 2014 HB 1288 also forces parents and schools to waste time and resources repeatedly submitting and collecting the same exemption information.
Two wrongs don’t make a right. Handing over sensitive confidential vaccine exemption information directly into the hands of the health department for school attendance requirements due to a bad bill being passed last session is not acceptable. Schools should be responsible for personal information in the school record where the privacy and use of this information is protected by federal law. OPPOSE HB 1164.
NVIC Advocacy Team
National Vaccine Information Center
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