TITLE 7 HEALTH
CHAPTER 5 VACCINATIONS AND IMMUNIZATIONS
PART 3 EXEMPTION FROM SCHOOL, CHILDCARE, AND PRE-SCHOOL
IMMUNIZATION
7.5.3.1 ISSUING AGENCY: Public Health Division, Department of Health.
[7.5.3.1
NMAC - Rp, 7 NMAC 5.3.1, 11/27/2013]
7.5.3.2 SCOPE: These regulations govern the procedures for
seeking exemptions from any of the immunizations required for public, private,
home, parochial, elementary, and secondary schools, as well as early childhood
education facilities under the New Mexico public education department and
licensed preschool or child care centers.
[7.5.3.2
NMAC - Rp, 7 NMAC 5.3.2, 11/27/2013]
7.5.3.3 STATUTORY AUTHORITY: This regulation has been promulgated by the
secretary of the department of health under the authority of Sections 9-7-6,
24-1-3(N), 24-5-1, and Section 24-5-3 NMSA, 1978. Enforcement of this regulation is the
responsibility of the public health division of the New Mexico department of
health.
[7.5.3.3
NMAC - Rp, 7 NMAC 5.3.3, 11/27/2013]
7.5.3.4 DURATION: Permanent.
[7.5.3.4
NMAC - Rp, 7 NMAC 5.3.4, 11/27/2013]
7.5.3.5 EFFECTIVE DATE: November 27, 2013, unless a later date is
cited at the end of a section or paragraph.
[7.5.3.5
NMAC - Rp, 7 NMAC 5.3.5, 11/27/2013]
7.5.3.6 OBJECTIVE: The objective is to establish standards and
procedures for obtaining exemptions to required immunizations as allowed by
Section 24-5-3 NMSA 1978; specifically for children whose:
A. licensed physician, a physician assistant, or
a certified nurse practitioner provides a certificate stating that any
of the required immunizations would seriously endanger the life or health of
the child; or
B. parent or legal
guardian attests via affidavit or written affirmation from an officer of a
recognized religious denomination that such child's parents or guardians are
bona fide members of a denomination whose religious teaching requires reliance
upon prayer or spiritual means alone for healing; or
C. parent or legal
guardian attests via affidavit or written affirmation that their religious
beliefs, held either individually or jointly with others, do not permit the
administration of vaccine or other immunizing agent.
[7.5.3.6
NMAC - Rp, 7 NMAC 5.3.6, 11/27/2013; A, 8/29/2023]
7.5.3.7 DEFINITIONS:
A. “ACIP”
means advisory committee on immunization practice.
B. “Administrative authority”
means the superintendent, principal, or the designee of such person.
C. “Certified nurse practitioner” means a registered
nurse licensed by the New Mexico board of nursing for advanced practice as a
certified nurse practitioner.
D. “Denial”
means a denial of a request for exemption from immunizations.
E. “Department” means the department of
health.
F. “Licensed
physician” means a physician licensed by the New Mexico board of medicine
to practice medicine or osteopathic medicine.
G. “NMSIIS”
means the New Mexico Statewide Immunization Information System; a secured,
confidential, population-based, computerized registry for recording vaccination
information established pursuant to Sections 24-5-7 through 24-5-15 NMSA 1978.
H. “Physician assistant” means a health care practitioner licensed by the
New Mexico board of medicine to practice as a physician assistant and to
provide services to patients with the supervision of or in collaboration with a
licensed physician.
I. “Public health division” means a division of the department of
health within which the immunization program is located.
J. “Required immunizations” means those immunizations against diseases
deemed to be dangerous to the public health by the public health division, and
set forth in its immunization requirements, which are within recommendations of
the ACIP.
K. “Satisfactory
evidence of commencement of immunization” means satisfactory evidence of a
person having begun the process of immunizations, such as a certificate, or
record signed by a licensed physician or other recognized public or private
health provider stating that the person has received at least the first in the
series of required immunizations and is proceeding with the immunizations
according to the prescribed schedule.
L. “Satisfactory
evidence of immunization” means a statement, certificate, or record signed
by a licensed physician or other recognized licensed health provider stating
that the required immunizations have been given to the person or record of
receipt of immunization in the NMSIIS registry.
M. “Secretary” means the secretary for the
department of health.
[7.5.3.7
NMAC - Rp, 7 NMAC 5.3.7, 11/27/2013; A, 8/29/2023]
7.5.3.8 REQUIREMENTS FOR APPROVAL OF EXEMPTIONS FROM
IMMUNIZATION:
A. Any minor child through his parent
or guardian may file a request for exemption from required immunization with
the director of the public health division by providing the following:
(1) certificate or affidavit from a licensed physician, a physician assistant, or
a certified nurse practitioner attesting that any of the required
immunizations would seriously endanger the life or health of the child; or
(2) an affidavit or written affirmation
from an officer of a recognized religious denomination stating that the parents
or guardians are bona fide members of the recognized denomination, whose
religious teaching requires reliance upon prayer or spiritual means alone for
healing; or
(3) an affidavit or written affirmation
by a parent or guardian whose religious beliefs, held either individually or
jointly with others, do not permit the administration of vaccine or other
immunizing agents.
B. The original request for approval of
any exemptions from immunization must be mailed to the department of health,
public health division, immunization program.
The address is P.O. Box 26110, Suite S-1250, Santa Fe, NM, 87502. Request forms can be found at the
immunization program offices 1190 St. Francis Drive, Suite South 1250 or on the
program’s website.
C. Within 60 days of receipt of a
request for exemption from immunization, the department of health immunization
program staff shall review the request to determine whether the certificate has
been duly completed. Incomplete requests
shall be returned to the requester with information regarding what elements are
missing.
D. The department of health
immunization program staff shall determine approval status of all requests for
exemption:
(1) exemption requests shall be approved
for a one-year period indicated by the public health division director or
designee;
(2) in the case of approval of a request
for exemption, an approved, signed copy of the request shall be provided to the
parents or guardian of the child;
(3) in the case of a denial, the
department of health immunization program staff shall state the reasons for
denial in a letter of notification to the parents or guardian of the
child. The notice to the parents or
guardians shall also include information about the review process in 7.5.3.9
NMAC.
[7.5.3.8
NMAC - Rp, 7 NMAC 5.3.8, 11/27/2013; A, 8/29/2023]
7.5.3.9 REVIEW CRITERIA:
A. The department of health
immunization program staff will consider the requirements and allowances of the
law and the completeness and clarity of the requests for exemption in his or
her review. Written criteria for review
of exemption from immunization shall be available on the department of health
website, included in documents required for submission of immunization
exemptions, and provided upon request made to the department.
B. Requests for exemption based on a
certificate or affidavit from a licensed physician, a physician assistant, or a
certified nurse practitioner will be reviewed for the following:
(1) an original document signed by a
licensed physician, a physician assistant, or a certified nurse practitioner,
which
(2) contains a statement that
immunizations would seriously endanger the health of the child.
C. Requests for religious exemption
based on an affidavit or written affirmation from an officer of a religious
denomination will be reviewed for the following:
(1) an original document signed by an
officer of the denomination, which
(2) contains a statement affirming that
the parent or guardian of the child are members of the religious denomination;
and
(3) that the religious teachings of the
denomination require reliance on prayer or spiritual means alone for healing.
D. Requests for exemption based on an
affidavit or written affirmation from a parent will be reviewed for the
following:
(1) an original, signed, complete,
properly notarized form, which
(2) contains a statement of affirmation
from the parent or guardian that their personal religious belief, or jointly-held religious belief does not permit immunization
of their child.
[7.5.3.9
NMAC - Rp, 7 NMAC 5.3.9, 11/27/2013; A, 8/29/2023]
7.5.3.10 CHILDREN EXPERIENCING
HOMELESSNESS:
Children experiencing homelessness:
Pursuant to the McKinney-Vento Homeless Assistance Act (42
USC § 11432(g)(3)(C)), children experiencing homelessness must be able to enroll
in school immediately, even if they are unable to produce records normally
required for enrollment, such as previous academic records, medical records,
proof of residency, or other documentation.
If the child needs to obtain immunizations, or medical or immunization
records, the enrolling school must immediately refer the parent or guardian of
the child or youth to the designated local educational agency liaison, who must
assist in obtaining necessary immunizations, or immunization or medical records.
[7.5.3.10
NMAC - Rp, 7 NMAC 5.3.10, 11/27/2013]
7.5.3.11 ADMINSTRATIVE REVIEW OF
DENIALS:
In the case of a denial, the parent or guardian shall have the right to
request an administrative review.
Criteria for administrative review shall be available on the department
of health website, included in documents required for submission of
immunization exemptions, and provided upon request made to the department of
health. Any hearing process under
7.5.3.12 NMAC can only be commenced after the administrative review pursuant to
7.5.3.11 NMAC is completed and the parent or guardian
receives notification by mail that the administrative review was denied.
A. The parent or guardian may submit a
letter requesting administrative review and any supporting documents to the
public health division director or designee within 30 days of receipt of notice
of the initial denial from the department of health immunization program
manager.
B.
Within 10 working days of
receipt of the request for administrative review, the department of health’s
public health division director shall review the request for administrative
review and any supporting documents and make a determination
of approval or denial as to the underlying request for exemption. After the administrative review is complete
the department’s public health division director shall notify the parent or
guardian and the child’s school, by certified mail, if the administrative
review of the request for exemption was approved or denied.
C. If approved, the child shall be
considered exempt from immunizations for a nine-month period.
D. If the appeal is denied, and the
parent or guardian desires further review or consideration, the parent or
guardian may request a hearing pursuant to 7.5.3.12 NMAC.
[7.5.3.11
NMAC - Rp, 7 NMAC 5.3.11, 11/27/2013]
7.5.3.12 RIGHT TO HEARING AFTER
ADMINSTRATIVE REVIEW:
A. Right to appeal:
A parent or guardian
may request a hearing to appeal a decision of the public health division
director only after a denial of an administrative review. A hearing may not be requested at the same
time as an administrative review is underway pursuant to 7.5.3.11 NMAC.
B. Right to hearing:
A parent or guardian
may request a hearing before a hearing officer appointed by the secretary to
contest a denial of an immunization exemption under this rule, by mailing a
certified letter, return receipt requested, to the public health division
director within 30 days after the denial resulting from the administrative
review. If the parent or guardian fails
to request a hearing in the time and manner required by this section, the
parent or guardian shall forfeit the right to a hearing, and the denied immunization
exemption shall become final and not subject to judicial review.
C. Scheduling the hearing:
(1) Appointment of hearing officer:
Upon the public health
division director's receipt of a timely request for a hearing, the department
shall appoint a hearing officer and schedule a hearing.
(2) Hearing date: The hearing shall be held not more than 60
days and not less than 15 days from the date of service of the notice of the
hearing.
(3) Notice of hearing: The department shall notify the parent or
guardian of the date, time, and place of the hearing and the identity of the
hearing officer, and shall identify the statute(s) and regulation(s)
authorizing the department to deny the immunization exemption, within 20 days
of the public health division director's timely receipt of the request for
hearing.
(4) Hearing venue: The hearing shall be held in Santa Fe, New
Mexico.
D. Method of service: Any notice or decision required to be served
under this section may be served either personally or by certified mail, return
receipt requested directed to the parent or guardian at the last known mailing
address (or, if service is made personally, by the last known physical address)
shown by the records of the department immunization program. If the notice or decision is served
personally, service shall be made in the same manner allowed by the rules of
civil procedure for the state district courts of New Mexico. Where the notice or decision is served by
certified mail, it shall be deemed to have been served on the date borne by the
return receipt showing delivery, or the date of the last attempted delivery of
the notice or decision, or the date of the addressee's refusal to accept
delivery.
E. Hearing officer duties: The hearing officer shall conduct the
hearing, rule on any motions or other matters that arise prior to the hearing,
and issue a written report and recommendation(s) to the secretary following the
close of the hearing.
F. Official file: Upon appointment, the hearing officer shall
establish an official file which shall contain all notices, hearing requests,
pleadings, motions, written stipulations, evidence, briefs, and correspondence
received in the case. The official file
shall also contain proffered items not admitted into evidence, which shall be
so identified and shall be separately maintained. Upon conclusion of the proceeding and
following issuance of the final decision, the hearing officer shall tender the
complete official file to the department for its retention as an official
record of the proceedings.
G. Powers of hearing officer: The hearing officer shall have all the powers
necessary to conduct a hearing and to take all necessary action to avoid delay,
maintain order, and assure development of a clear and complete record,
including but not limited to the power to:
(1) administer
oaths or affirmations;
(2) schedule
continuances;
(3) direct
discovery;
(4) examine
witnesses and direct witnesses to testify;
(5) subpoena
witnesses and relevant books, papers, documents, and other evidence;
(6) limit
repetitious and cumulative testimony;
(7) set
reasonable limits on the amount of time a witness may testify;
(8) decide
objections to the admissibility of evidence or receive the evidence subject to
later ruling;
(9) receive
offers of proof for the record;
(10) take
notice of judicially cognizable facts or take notice of general, technical, or
scientific facts within the hearing officer's specialized knowledge (provided
that the hearing officer notifies the parties beforehand and offers the parties
an opportunity to contest the fact so noticed);
(11) direct
parties to appear and confer for the settlement or simplification of issues,
and otherwise conduct pre-hearing conferences;
(12) impose
appropriate evidentiary sanctions against a party who fails to provide
discovery or who fails to comply with a subpoena;
(13) dispose
of procedural requests or similar matters;
(14) enter
proposed findings of fact and conclusions of law, orders, reports and
recommendations; and
(15) utilize
his or her experience, technical competence, or specialized knowledge in the
evaluation of evidence presented.
H. Minimum discovery; inspection and copying of documents: Upon written request to another party, any
party shall have access to documents in the possession of the other party that
are relevant to the subject matter of the appeal, except confidential or
privileged documents.
I. Minimum discovery; witnesses: The parties shall each disclose to each other
and to the hearing officer, either orally or in writing, the names of witnesses
to be called, together with a brief summary of the
testimony of each witness. In situations
where written statements will be offered into evidence in lieu of a witness's
oral testimony, the names of the persons making the statements and a brief summary of the statements shall be disclosed.
J. Additional discovery: At the hearing officer's discretion, upon a
written request by a party that explains why additional discovery is needed,
further discovery in the form of production and review of documents and other
tangible things, interviews, depositions or written interrogatories may be
ordered. In exercising his or her
authority to determine whether further discovery is necessary or desirable, the
hearing officer should consider whether the complexity of fact or law
reasonably requires further discovery to ensure a fair opportunity to prepare
for the hearing, and whether such request will result in unnecessary hardship,
cost, or delay in holding the hearing.
Depositions shall not be allowed, except by order of the hearing officer
upon a showing that the deposition is necessary to preserve the testimony of
persons who are sick or elderly, or who will not be able to attend the hearing.
K. Subpoena limits; service: Geographical limits upon the subpoena power
shall be the same as if the hearing officer were a district court sitting at
the location at which the hearing or discovery proceeding is to take place. The method of service shall be the same as
that under the Rules of Civil Procedure for the district courts, except that
rules requiring the tendering of fees shall not apply to the department.
L. Pre-hearing disposition: The subject matter of any hearing may be
disposed of by stipulation, settlement, or consent order, unless otherwise
precluded by law. Any stipulation,
settlement, or consent order reached between the parties shall be written and
shall be signed by the hearing officer and the parties or their attorneys.
M. Postponement or continuance: The hearing officer, at his or her
discretion, may postpone or continue a hearing upon his or her own motion, or
upon the motion of a party, for good cause shown. Notice of any postponement or continuance
shall be given in person, by telephone, or by mail to all parties within a
reasonable time in advance of the previously scheduled hearing date.
N. Conduct of hearing: These hearings will be closed to prevent the
disclosure of confidential information, including but not limited to health
information protected by state and federal laws.
O. Telephonic testimony: Upon timely notice to the opposing party and
the hearing officer, and with the approval of the hearing officer, the parties
may present witnesses by telephone or live video (if available).
P. Legal representation: The department may appear by an officer or
employee and parent or guardian may appear pro se or either the department or
parent or guardian may be represented by an attorney licensed to practice in
New Mexico.
Q. Recording: The hearing officer or a designee shall
record the hearing by means of a mechanical sound recording device provided by
the department for a record of the hearing.
Such recording need not be transcribed, unless requested by a party who
shall arrange and pay for the transcription.
R. Burden of proof: Except as otherwise provided in this rule,
the department has the burden of proving by a preponderance of the evidence the
basis for the denied immunization exemption.
S. Order of presentation; general rule: Except as provided in this rule, the order of
presentation for hearings in all cases shall be:
(1) appearances: Opening of proceeding and taking of
appearances by the hearing officer;
(2) pending matters: Disposition by the hearing officer of
preliminary and pending matters;
(3) opening statements: The opening statement of
the department, and then the opening statement of the party challenging the
department's action or proposed action;
(4) cases: The department's
case-in-chief, and then the case-in-chief of the party challenging the
department's action;
(5) rebuttal: The department's case-in-rebuttal;
(6) closing argument: The department's closing statement, which may
include legal argument; and then the closing statement of the party opposing
the department's action or proposed action, which may include legal argument;
(7) close: Close of proceedings by the hearing officer.
T. Admissible evidence; rules of evidence not applicable: The hearing officer may admit evidence and
may give probative effect to evidence that is of a kind commonly relied on by
reasonably prudent persons in the conduct of serious affairs. Rules of evidence, such as the New Mexico
Rules of Evidence for the district courts, shall not apply but may be
considered in determining the weight to be given any item of evidence. The hearing officer may at his or her
discretion, upon his or her motion or the motion of a party or a party's
representative, exclude incompetent, irrelevant, immaterial, or unduly
repetitious evidence, including testimony, and may exclude confidential or
privileged evidence.
U. Objections: A party may timely object to evidentiary
offers by stating the objection together with a succinct statement of the
grounds for the objection. The hearing
officer may rule on the admissibility of evidence at the time an objection is
made or may receive the evidence subject to later ruling.
V. Official notice: The hearing officer may take notice of any
facts of which judicial notice may be taken, and may take notice of general,
technical, or scientific facts within his or her specialized knowledge. When the hearing officer takes notice of a
fact, the parties shall be notified either before or during the hearing of the
fact so noticed and its source, and the parties shall be afforded an
opportunity to contest the fact so noticed.
W. Record content: The record of a hearing shall include all
documents contained in the official file maintained by the hearing officer,
including all evidence received during the course of
the hearing, proposed findings of fact and conclusions of law, the
recommendations of the hearing officer, and the final decision of the
secretary.
X. Written evidence from witnesses: The hearing officer may admit evidence in the
form of a written statement made by a witness, when doing so will serve to
expedite the hearing and will not substantially prejudice the interests of the
parties.
Y. Failure to appear: If a party who has requested a hearing or a
party's representative fails to appear on the date, time, or location announced
for a hearing, and if no continuance was previously granted, the hearing
officer may proceed to hear the evidence of such witnesses as may have appeared
or may accept offers of proof regarding anticipated testimony and other
evidence, and the hearing officer may further proceed to consider the matter
and issue his report and recommendation(s) based on the evidence presented; and
the secretary may subsequently render a final decision. Where a person fails to appear at a hearing
because of accident, sickness, or other cause, the person may within a
reasonable time apply to the hearing officer to reopen the proceeding, and the
hearing officer may, upon finding sufficient cause, fix a time and place for a
hearing and give notice to the parties.
Z. Hearing officer written report and recommendation(s): The hearing officer shall submit a written
report and recommendation(s) to the secretary that contains a statement of the
issues raised at the hearing, proposed findings of fact and conclusions of law,
and a recommended determination.
Proposed findings of fact shall be based upon the evidence presented at
the hearing or known to all parties, including matters officially noticed by
the hearing officer. The hearing
officer's recommended decision is a recommendation to the secretary of the New
Mexico department of health and is not a final order.
AA. Submission for final decision: The hearing officer's report and
recommendation(s) shall be submitted together with the complete official file
to the secretary of the New Mexico department of health for a final decision no
later than 30 days after the hearing.
BB. Secretary's final decision: The secretary shall render a final decision
within 45 calendar days of the submission of the hearing officer's written
report. A copy of the final decision
shall be mailed to the appealing party by certified mail, return receipt
requested within 15 days after the final decision is rendered and signed. A copy shall be provided to legal counsel for
the public health division.
[7.5.3.12
NMAC - Rp, 7 NMAC 5.3.12, 11/27/2013]
HISTORY
OF 7.5.3 NMAC:
Pre-NMAC
History: The material in this Part was
derived from that previously filed with the state records center:
HSSD
76-1, Religious Exemption From School Immunization, 1/14/1976.
History
of Repealed Material: 7 NMAC 5.3, Religious
Exemption from School Immunization, filed 10/18/96 – Repealed effective 11/27/2013.