`Anti-vaxxers` in the waiting room

Here’s the scenario: You have a child in your outpatient waiting room, whose parents refuse to allow him to be vaccinated against common childhood illnesses. They have decided this due to a personal belief that vaccinations constitute a risk for autism or other significant health hazards. What would your organization do?

This issue may be even more significant if you operate a children's or adolescent residential program. According to a 2012 study from Emory University, 20 states allow personal-belief vaccination exemptions for enrollment in public schools or child care programs. In nine states parents simply have to sign a form. Researchers suspect that some parents sign exemption forms just because it’s more convenient or cheaper than taking the child to the doctor. Home schooling is also a way to bypass state immunization laws for school attendance. The   states where you can most easily get exemptions are North Dakota, Wisconsin, Massachusetts, Rhode Island, Connecticut, Maryland, Missouri, Colorado, and Arizona. All states allow medical exemptions and all states but West Virginia and Mississippi also allow religious exemptions.

The Emory study found that opt-out rates in states allowing personal-belief exemptions are 2.5 times higher than in states only permitting religious exemptions. The study also reported that whooping cough rates were twice as high in states with personal-belief exemptions than those with only religious exemptions. Exemptions are highest in western states and the upper Midwest. Marin County, California, has a personal-belief exemption rate four times the national average and the second-highest rate of whooping cough in the state. As well as risking infection and serious illness, children who are not immunized can also transmit   diseases to infants who are too young to be vaccinated, as well as children with medical exemptions who cannot be immunized because of   medical conditions or the small number of children whose vaccines are for some reason just not effective. Adults, whose immunity has “worn off”, are also at risk.

Traditionally, these vulnerable groups have been protected by what is known as “herd immunity.” Herd immunity refers to a situation in which a critical mass (about 80% to 90%) of the community has been vaccinated (or have natural immunity from having the disease). With such an immunity rate, the spread of the disease is unlikely. Herd immunity, however, can be dangerously weakened by vaccine refusal, putting the vulnerable at risk.

Much of the current vaccination opposition seems to have stemmed  from a discredited 1998 British study linking vaccinations to autism and from anecdotal accounts. The British gastroenterologist   Andrew Wakefield,who wrote the article, eventually had his medical license revoked and turned out to be a paid consultant to attorneys of parents who believed vaccines had caused their children’s disorders. Also highly influential have been the expressed opinions of celebrities, such as Jenny McCarthy, who maintained that vaccinations cause her child’s autism, and politicians such as U.S. Rep. Michele Bachmann, who has stated that the human papillomavirus vaccine is dangerous and can cause mental retardation.

According to Lawrence Madoff, director of Epidemiology and Immunization for Massachusetts. “When immunization rates fall, it doesn’t take long, even in a developed country, for diseases to resurge.” Such diseases are “only a plane ride away."

Personal freedom or free riders?

Like climate change and other scientific issues, vaccinations have become politicized as an issue of ideology and personal freedom. The primary risk from opting-out falls to the unvaccinated child. In some cases charges of child abuse or medical neglect have even been raised,  as in Pennsylvania a few years ago, when a measles outbreak killed nine unvaccinated children from two religious communities   opposing  immunizations.

According to Dorit Rubinstein Reiss, a law professor at the University of California, parents who reject   prevailing scientific evidence that indicates the risk of not vaccinating is much greater than vaccinating, may be “seen as violating a child’s right to health and life." Reiss says that while courts acknowledge the state’s right to protect children,  they have been less apt to address the dangers of non-vaccination,  without clear legislative direction. Occasionally courts have overrule parental vaccination decisions, but usually this has been when divorced parents disagree about immunizations. Reiss seems skeptical of the successful employment  of criminal statues to prosecute parents who don’t immunize their children, even when it results in harm to the child.

The anti-vaxxer issue has even shown up in a television show. In a Season 10 episode of Law & Order: Special Victims Unit entitled “Selfish,” parents were prosecuted because they decided to not vaccinate their own child and this resulted in someone else's vulnerable child dying. In an article entitled “Endangering the Herd,” Slate Magazine writer Jed Lipinski cites the work of Arthur Caplan from New York University Medical School. Caplan argues that opting a child out of vaccines should not offer  protection for parents from liability for the consequences that that choice has for others, such as  infants or other at-risk individuals getting harmed. In other words, parents who choose not to vaccinate their children theoretically could be held legally responsible if their child infects someone else. Does this legal liability, however, transfer over to organizations that knowingly allow unvaccinated children to be in close proximity to potentially vulnerable individuals in their facilities?

In a recent survey 85% of pediatricians reported encountering a parent who refused or delayed immunizations for their child.  Also more than half have worked with parents who refused all vaccines. Around the country some of these pediatricians are now declining  to treat children, whose parents refuse vaccinations. Harry Miller, a pediatrician in Clifton Park, N.Y., works at a practice that stopped treating unvaccinated children about a year ago. He says “Exposing that small percent who don’t vaccinate to those who do is a disservice.”

Getting over the fear

The American Academy of Pediatrics suggests a less drastic approach and says in their policy statement. “Over time, parents may be willing to reconsider previous vaccine refusals.” They see the physician’s role as one of addressing parental concerns and providing education about vaccines. But they also say, “However, when a substantial level of distrust develops, significant differences in the philosophy of care emerge, or poor quality of communication persists, the pediatrician may encourage the family to find another physician or practice.”

Alan Phillips, J.D., who styles himself as a  vaccine rights attorney, calls such refusals a discriminatory coercive act, in short-- “professional bullying.” He says that “Physicians who refuse to treat unvaccinated children due to a parent's exercise of a lawful exemption to immunizations may be violating the parent's Constitutional rights and state ethical rules, and risking liability and/or sanctions accordingly.” He maintains that the target of the physician’s efforts should be the state legislatures that passed personal and  religious exemption laws, not “innocent” children and parents.

Generally the anti-vaxxers fear of vaccines stems from a deep distrust of big government, intellectualism as represented by institutionalized science and the medical establishment, and big business as represented by big pharma-- not that any of these institutions have historically shown themselves to be particularly trustworthy. Many people are also looking for something concrete to blame for phenomena such as autism or intellectual disabilities, both of which may appear to be random occurrences. Such a sense of randomness generates significant anxiety in many people, which is somewhat alleviated by having a comprehensible and plausible theory of cause,  even if it has no evidence or scientific backing. All it requires is minimal face validity and a reasonable  fit with personal theories, even if it misrepresents how the science actually works  (such as the assumption that vaccines are equivalent to toxins).

As recently   as June 2014, The New York Times reported that Judge William F. Kuntz II ruled to uphold a New York City policy that prohibits religiously exempted unvaccinated children from attending New York Schools in certain circumstances, such as when another student at the school has an active case of a disease, to which the unvaccinated child may be exposed. The judge cited a century old public health ruling as precedent, as well as, recent federal court findings that said, "the free exercise clause of the First Amendment does not provide a right for religious objectors to be exempt from New York's compulsory inoculation law.” Writing for the theshotofprevention.com website, Professor Reiss, who calls anti-vaxxer parents “free-riders,” argues that parents should have some responsibility for the consequence of their acts. “Why should the state have to pay for an outbreak due to a choice someone made that ignores the risk of disease, goes against scientific and medical consensus, and creates a risk for the community?” She suggests the establishment of some monetary sanctions for failure to vaccinate. This could be done preemptively through assessed fees, or taxes, on those who don’t vaccinate, or alternatively by providing vaccinating families with tax breaks, such as is done in Australia. It can also be done through raising insurance premiums for non-vaccinators. Sanctions could also be imposed after actual outbreaks, which may be ultimately fairer, but  harder to implement.

Opening Scenario Options for the Behavioral Healthcare Providers

1. Refuse service. This option may be the most direct solution, but also problematic for publically funded organizations, which might face discrimination complaints, charges, or lawsuits. Such polices may even jeopardize funding. Private pediatricians seem to be able to do this with little consequence, so long it does not involved denial of emergency or life-sustaining services and viable alternatives are available.

2. Require the parents to indemnify the organization in writing from any consequences of their decision. After discussing this with some attorneys, they speculated that even a well-written indemnify agreement may not offer sufficient protection, depending on applicable laws and statues. Also with its liability and malpractice insurance the provider often will the deepest pockets involved and plaintiffs will naturally look to it for compensation.

3. Segregated the child from other clients and staff members who might be vulnerable. This could be done through the use of separate waiting areas or service locations and the strategic assignment of staff. This seems to be the most reasonable approach, perhaps combined with an indemnification agreement. Even then, however, there is still the possibility for charges of discriminatory behavior.

To a large extent the opening scenario is rather improbable, because of the small absolute number of ant-vaxxers and the high likelihood the provider organization would not know in any case. This, of course, begs the question about whether or not the provider organization should routinely seek out this information by making inquiries. As more and more behavioral healthcare providers become involved in offering integrated behavioral/primary healthcare services, suchimmunizations may become an even large issue in the future.

Until there is more extensive case law and more judicial precedents, it is difficult to predict how much exposure provider organizations actually have. Proving that a provider organization had (or should have had) prior knowledge of immunization status, and then proving that exposure within the provider organization’s confines was the proximate cause of harm would be very burdensome. Even then, as one attorney put it, it would all turn on the particulars of the specific case at that point. As you can readily see, currently there are no foolproof solutions to this sticky issue. This work is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.