It's time to limit vaccine exemptions for personal beliefs

In 2000, the Centers for Disease Control announced the eradication of measles. But a decade later and a half later, measles cases are cropping up throughout California and other states.

Measles is a preventable disease, against which we have a very effective, very safe vaccine. Ninety-nine percent of the people who receive two doses of the measles, mumps and rubella (MMR) vaccine are protected. Long term, serious harms from the vaccine are extremely rare. Measles, in contrast, comes with a high rate of complications, including ear infections, pneumonia, encephalitis (brain injury) and death. Over 20 percent of those ill in this most recent outbreak were hospitalized.

It should be a no-brainer - but it's not: some parents are refusing to give their children the vaccine, and we see the result in the rising number of cases, mostly in the unvaccinated. Those parents have been subject to misinformation about the vaccine's risks and misleading claims that the disease is mild.

Families are suffering because of intentional non-vaccinating. In the San Francisco Bay Area, babies were quarantined. In Orange County, unvaccinated teenagers were denied entry to school because of a case.

And in one case in California, Carl Krawitt, a Marin County father is trying to get the school board to protect his unvaccinated son by expelling vaccinated children from the school. Why? Because six-year-old Rhett Krawitt's battle with leukemia (now in remission) leaves him unable to be vaccinated until his immune system rebuilds itself. Rhett depends on high vaccination rates in the community - known as "herd immunity" - to keep him safe. Krawitt previously asked the school to put Rhett in a class where most children are vaccinated - which the school did. The only other two unvaccinated children in the class are also unvaccinated for medical reasons.

Because Marin County has relatively high rates of exemptions (In Rhett's school, 7 percent of the children have exemptions, in other schools, it's higher yet), Krawitt is concerned about measles being brought into the school by unvaccinated children, and asked the district superintendent to disallow children who have an exemption from school immunization requirements unless the exemption is on medical ground.

Like all states, California requires children to get certain immunizations before attending school, but provides medical exemptions for those who cannot be vaccinated. Like most states - except for West Virginia and Mississippi - California also exempts children for non-medical reasons. California is one of 21 states that allows a personal belief exemption (PBE), embodied in Section 120365 of the state's Health and Safety Code. While parents requesting a PBE must now get a health provider's signature on a form attesting that the parent was given information about the risks of benefits of vaccines before getting the exemption - it is not difficult to get one.

The law allows schools to exclude children with an exemption "[w]hen there is good cause to believe that the person has been exposed to one of the communicable diseases listed in subdivision" until the danger has passed. (Section 120365(e)). Schools interpret it broadly to allow them to exclude all unvaccinated children when there's an outbreak - or even one case - of a vaccine preventable disease in the school, until the incubation period of the disease from the last case has passed.

Rhett's father, however, is asking the superintendent to do more: to exclude unvaccinated children from the school even though there has been no case.

However, the superintendent lacks the legal authority to do so: the clause allowing for exclusion requires some exposure to the risk of disease, and without a case, or other evidence, there is no such exposure. If a neighboring institution had exposure, there may be a possibility to stretch the statute; but it would be a reach. And the more general clause - Section 120365(a) - does not appear to give schools discretion to exclude students - certainly not to public schools. The clause reads "Immunization of a person shall not be required for admission..." [if the person gets an exemption]. That suggests that a school - at least a public school (there may be a different argument for a private school) - cannot just refuse to accept exempt children.

Can the law do anything for Rhett?

Rhett doesn't deserve to be seriously harmed by measles because other parents refuse to protect their children against the disease. No child deserve to be left at the mercy of a preventable disease, but this case highlights how some parents' decisions put more than just their own children at risk. It's unacceptable to say that the state and his parents have to stand by and watch him suffer because of misinformation.

What can we do to protect Rhett and children like him?

One potential claim is that a public school needs to offer Rhett reasonable accommodation under title II of the Americans with Disabilities Act by providing him with a high-vaccination-rates school environment. As federal law, the ADA would trump over the state exemption law. This conclusion has problems: excluding exempt children from school can be seen as extensive and unreasonable - it doesn't fit in with our previous interpretation of ADA. The school has already provided Rhett with a class where more students are vaccinated, and limiting exemptions in the entire school can be seen as too much. That said, the arguments for protecting children like Rhett are also powerful.

Other possibilities involve legislative changes. Our constitution gives states extensive leeway to mandate vaccines for children. The most direct solution is to make non-medical exemptions harder yet to get, or even unavailable. The complete removal of personal exemptions is not the best answer, but given the ease of getting one, tightening it would help.

More specifically, the law could be changed to allow school districts to act proactively if there is a risk of an outbreak. Right now, when cases are popping all over the bay area and Marin has low vaccination rates. Why require the superintendent to wait for a case to pop up in a school? Measles is extremely contagious - and contagious up to four days before symptoms appear. When there's a case in a school, the children have already been exposed. Children like Rhett would then be in real danger. Why not allow school superintendent to take measures - like requiring that vaccinated children stay home - when there is good cause to suspect an outbreak may occur in the district?

Another option is to allow schools to choose to be "safe havens" - to choose to be the school that does not accept exempt children. A school district can be authorized to decide on such requests, and the law can be written to assure that exempt children have educational opportunities as well, that not all schools in the district are "safe havens." But such an option will provide Rhett and others like him additional safety.

But what if Rhett has already been exposed to a child with measles? If Rhett is harmed by another family's decision not to vaccinate - something I fervently hope will not happen - that family should be liable in torts. This would be easier if a statute was passed creating a duty in these cases; but there is also an argument without it, and Rhett's family should not have to suffer financially in addition to the other suffering this situation imposes on them.

This situation clearly shows how not vaccinating, absent a medical contraindication, is a bad choice - not only for the individual child involved, but for many others in their community. The state should protect the vulnerable from it.

Dorit Reiss is a professor at University of California, Hastings.