Know the Law
On 2/14/2017, the Ohio Department of Education (ODE) posted new requirements for all ODE-licensed child care providers. They say these are based off changes made in September 2016 to the Child Care Development Block Grant (45 C.F.R. 98). As part of these changes, ODE instructed child care providers to provide written information to families in three areas including a change in their ability to use reasons of conscience exemptions. They go on to say that ‘Licensing specialists will be looking that your program removes “reasons of conscience” language from information you give parents in handbooks, websites or forms to record immunizations.’
OAMF was sent to this website (https://www.acf.hhs.gov/occ/ccdf-reauthorization) by ODE as the basis for their determination that reasons of conscience exemptions are no longer acceptable. We were told that ODE’s legal team had reviewed the final rule changes prior to them making the new requirements. Specifically, they said: ‘The federal Child Care Development Block Grant now requires that the exemptions allowed are limited to the following:
Sec 98.41 Health and Safety Requirements
(B) Notwithstanding this paragraph (a)(1)i), Lead Agencies may exempt:
(1) Children who are cared for by relatives (defined as grandparents, great grandparents, siblings (if living in a separate residence), aunts and uncles), provided there are no other unrelated children who are cared for in the same setting.
(2) Child who receive care in their own homes, provided there are no other unrelated children who are cared for in the home.
(3) Children whose parents object to immunization on religious grounds.
(4) Children whose medical condition contraindicates immunization.
With this language, both ODJFS and ODE had to delete the existing language “reasons on conscience” from the immunization exemptions in our respective sets of rules. The deletion does not change a parents’ ability to decline immunizations for their child on religious or medical reasons and should not change our actual practice except that medical forms which have “reasons of conscience” checked will need to be updated by the parent. ODE does not require a specific form be completed as proof of immunizations or exemption, thus there is no form revision associated with the new requirement.’
We asked for more information and were sent a website for the Child Care and Development Fund Final Rule. We found a document that showed which sections had been amended — tracked changes — and the language for immunization exemptions (Sec. 98.41) was part of the changes! What has been changed is leniency in giving homeless and foster care children time to comply with the immunization requirements, for the most part.
In further reviewing the C.F.R. and its many changes, we noted that the language states:
Sec. 98.3 Effect on State law.
(a) Nothing in the Act or this part shall be construed to supersede or modify any provision of a State constitution or State law that prohibits the expenditure of public funds in or by sectarian organizations, except that no provision of a State constitution or State law shall be construed to prohibit the expenditure in or by sectarian institutions of any Federal funds provided under this part.
(b) If a State law or constitution would prevent CCDF funds from being expended for the purposes provided in the Act, without limitation, then States shall segregate State and Federal funds.
In fact, at the very beginning, the goal of the fund is stated as “(1) To allow each State maximum flexibility in developing child care programs and policies that best suit the needs of children and parents within that State.”
For the part (b), we have to wonder how the ODE is justifying a blanket change to cover all licensed child care providers, no matter if they benefit from the block grant or not. It seems that there are mechanisms in place to allow flexibility and not supersede Ohio law. Where is the evidence that ODE explored these options?
ODE says that medical forms that have reasons of conscience checked will have to be updated by parents and that they do not use a specific form, but they fail to acknowledge that their rule change went directly against ORC 5104.014, which states a child is not required to be immunized if:
“The child’s parent or guardian has declined to have the child immunized against the disease for reasons of conscience, including religious convictions.”
ODE maintains that religious and medical exemptions will still be accepted but does not seem to realize that the way the law is written, religious exemptions are included in reasons of conscience! They believe the law should be modified to reflect their rule change.
ODE has effectively decided that the law does not apply to them, even though the law was written to cover child care, preschool, and head start and is referred to by the Ohio Department of Health.https://www.odh.ohio.gov/-/media/ODH/ASSETS/Files/bid/immunizations/14-ChildCareHeadStartPreschoolImmunizations.pdf?la=en
To our knowledge, changes to state law require the legislature. When we asked the Speaker’s office to investigate, we were given an answer that this was federal law, so the federal legislators would have to be the ones to act. Apparently, Speaker Rosenberger believes it is fine for a state agency to make rules that supersede state law without first having the legislature change that law. Luckily, several other legislators are not content with that explanation and are conducting their own investigations.
When we looked on the site for guidance to lead agencies such as ODE, we found these FAQs for changes to the Health and Safety section. Note that immunization exemptions are not even mentioned because that wording was not changed. However, also note that the FAQs specifically call out past licensing (not immunization) exemptions, which often included school-age child care programs provided by public schools. ODE is, therefore, extending this new exclusion of reasons of conscience exemptions to after-school and other programs with school-age children.
School Exemption Form (Preschool and Child Care)
Preschool and Child Care immunization requirements, with notes about exemptions, are summarized here:
This page links to an Ohio Department of Job and Family Services CHILD MEDICAL STATEMENT FOR CHILD CARE that also includes a section and checkbox for exemptions.
Downloadable PDF: JFS-01305
Ohio Department of Education (ODE) also licenses preschools and child care, and the ODE Child Medical Statement with buttons to mark exemptions can be found here:
Downloadable PDF: Licensing-Child-Medical-Statement
According to Ohio Revised Code 5104.014, a child is not required to be immunized if “The child’s parent or guardian has declined to have the child immunized against the disease for reasons of conscience, including religious convictions…” Moreover, “The medical statement shall include a component where a parent or guardian may indicate that the parent or guardian has declined to have the child immunized.”
However, some preschools/licensed child care centers are not including these exemptions on their medical statements. For that reason, OAMF is providing this statement for parents, which is consistent with the wording of the law.
What You Can Do
Call, write/fax, and email your legislators! Use the KEY TALKING POINTS, SAMPLE CALL TEMPLATE, SAMPLE LETTER TEMPLATE, and REFERENCES below but try to make it personal. If you’re a parent of a current or future preschooler, let them know. If you’ve received a letter from your preschool, daycare, or school district, let them know. Remember that letters and faxes take up more space, and hand-written ones are especially well received. Calls require office staff to deal with them and let the legislator know that constituents are informed on the issues and want action. Find your legislators here: https://www.legislature.ohio.gov/legislators/find-my-legislators
Call, write/fax, and email the House Speaker and Senate President, using the same information as above.
Representative Clifford Rosenberger (R-Clarksville), Speaker of the House
77 S. High St 14th Floor
Columbus, OH 43215
Phone (614) 466-3506
Senator Larry Obhof (R-Medina), Senate President Senate Building
1 Capitol Square, 2nd Floor
Columbus, OH 43215
Call, write/fax, and email Governor Kasich. He appoints some of the Board of Education members. You can contact him online at http://www.governor.ohio.gov/Contact/ContacttheGovernor.aspx.
Governor John Kasich
Riffe Center, 30th Floor
77 South High Street
Columbus, OH 43215-6117
Phone: (614) 466-3555
Call, write/fax, and email the chairs of the education committee. The chairs of the education committees of the Ohio House of Representatives and Ohio Senate serve as non-voting ex officio members, so it would be good to get them involved as well.
Peggy Lehner (R-Kettering), Chair of Senate Education Committee
1 Capitol Square, 1st Floor
Columbus, OH 43215
Andrew Brenner (R-Powell), Chair of House Education and Career Readiness Committee
77 S. High St
Columbus, OH 43215
Phone (614) 644-6711
Contact the Board of Education, especially your elected member. You can find their contacts at http://education.ohio.gov/State-Board/State-Board-Members.
Contact Wendy Grove, Director in Early learning and School Readiness at ODE by emailing email@example.com or calling 614-466-2096.
Persist! The legislators will tell you they are working on it, give them time, etc. Be reasonable, but know that this is very time-sensitive information. It is already in process and will take great effort to change.
Key Talking Points
- Ohio Department of Education (ODE) developed new rules for licensed child care programs, including one that would eliminate reasons of conscience exemptions for immunizations which are allowed by ORC 5104.014. They instructed contacts to send out letters informing affected parents of the changes.
- ODE cited 45 C.F.R. 98, the reauthorization of the Child Care and Development Fund, as justification for having to change the immunization exemptions. That part of the law was not changed by the final rule. As stated on the website, the law hasn’t been changed for 18 years!
- Preschools and child care programs in Ohio have operated using this exemption language, which hasn’t been changed in the law, for 18 years. Why does ODE feel it is necessary to change this language now?
- In current law (ORC 5104.014), the religious conviction part is included under the reasons of conscience. How can ODE say they are keeping religious exemptions when the law is worded as such?
- Under what authority did ODE act to bypass or supersede the current immunization exemptions provided for in Ohio law? What is the process for the law to be changed to align with the new ODE rules after the fact? What happens if the law stands as is, for those who continue to submit reasons of conscience exemptions and for all of the communications and school policy changes that have been or will be put into effect?
Sample Call Template
(Modify with your personal experience/concerns)
“Hello, this is ________. I’m concerned about the changes to reasons of conscience exemptions that Ohio Department of Education has used in their new rules for preschools and child care programs. Specifically, I want to understand how a state agency can override Ohio law in their rules. Ohio law for preschool immunizations allows parents to decline for reasons of conscience including religious convictions in ORC 5104.014. Because of the specific wording of the law, if ODE tries to eliminate reasons of conscience exemptions, religious exemptions are also not valid. How is it possible for them to pick which exemptions, from the law, that they will allow? Ohio citizens value their exemptions as defined by law. Any attempts to modify these should be done so through the legislative process with full public hearing. I ask that you look into this matter immediately because districts are expected to write the changes into their policy as well. It sets a very dangerous precedent when a state agency is able to circumvent state law!”
Sample Letter Template
(Modify with your personal experience/concerns)
Dear [Representative or Senator] _______:
I’m concerned about the changes to reasons of conscience exemptions that Ohio Department of Education has used in their new rules for preschools and child care programs. Specifically, I want to understand how a state agency can override Ohio law in their rules.
ODE is citing rule changes in 45 C.F.R. 98, the Child Care and Development Fund reauthorization, as basis for these exemption exclusion. However, there is nothing changed in that part of the federal law. It has stated the same language for years, and Ohio preschools and child care programs have been operating with the exemptions as is with no problems.
Ohio law for preschool immunizations allows parents to decline for reasons of conscience including religious convictions in ORC 5104.014. Because of the specific wording of the law, if ODE tries to eliminate reasons of conscience exemptions, religious exemptions are also not valid. How is it possible for them to pick which exemptions, from the law, that they will allow?
Ohio citizens value their exemptions as defined by law. Any attempts to modify these should be done so through the legislative process with full public hearing. I ask that you look into this matter immediately because districts are expected to write the changes into their policy as well. It sets a very dangerous precedent when a state agency is able to circumvent state law!
- http://education.ohio.gov/Topics/Early-Learning/News/Child-Care-Rules-Amendment – ODE’s new rules explanation
- http://codes.ohio.gov/orc/5104.014 – Existing Ohio law covering preschool/child care program immunizations and exemptions
- https://www.odh.ohio.gov/odhprograms/bid/immunization/imunchsc.aspx – the Ohio Department of Health page linking to information (including exemptions) for child care and preschool immunizations
- https://www.acf.hhs.gov/occ/ccdf-reauthorization – the comprehensive website for the Child Care and Development Fund Reauthorization, including links to FAQs for lead agencies, history of the law, the current final rule, and tracked changes that show exactly how it was modified