Group sues state over immunization requirements

By Kyla Asbury | Sep 24, 2012

CHARLESTON -- A non-profit, voluntary association known as We the Parents is suing two public officials after they claim their children cannot go to school because of two immunization requirement rules that are different.

Rocco S. Fucillo, the cabinet secretary of the West Virginia Department of Health and Human Resources; and Marian L. Swinker, the commissioner of the Bureau for Public Health, are the defendants named in the suit.

Members of We the Parents are parents of children who have not received all of the required immunizations contained in Interpretive Rule 64CSR49, but may have received the immunizations required by West Virginia Code, according to a complaint filed Aug. 23 in Kanawha Circuit Court.

The parents claim their children are prohibited from exercising their Constitutional right to an education because of the interpretive rule, even though they may have received all of the immunizations required by West Virginia Code.

"In addition, the parents of these children may be subject to criminal conviction and punishment for failing to provide such immunizations," the complaint states.

The parents claim the interpretive rule adds three additional compulsory immunizations for children entering school for the first time, and two additional vaccines for other students.

The children are currently being prohibited from entering schools, which denies them of their rights, by operation of the interpretive rule, according to the suit, and the denial of education represents irreparable harm to the children.

The parents are seeking the court to issue a declaratory judgment that the interpretive rule is invalid because it violates constitutional provision and exceeds the statutory authority granted to the defendants; the court permanently enjoin the defendants from promulgating interpretive rules which purport to require compulsory immunizations in addition to those enumerated in West Virginia Code; and the court permanently enjoin the defendants from promulgating interpretive rules which by their operation, enforcement or execution would infringe upon the Constitutional and statutory rights and privileges of the members of We the Parents. They are being represented by Patrick Lane.

The case has been assigned to Circuit Judge Tod Kaufman.

Kanawha Circuit Court case number: 12-C-1700

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