Enforcement Discretion Regarding Immunization Requirements For Licensed and Registered Childcare Providers

This notification is to inform the public that the Department of Public Health and Human Services (the Department) is exercising its discretion in how it enforces the immunization requirements for licensed and registered childcare programs. As a matter of enforcement discretion, the Early Childhood & Family Support Division (ECFSD), through its Childcare Licensing Program, will not pursue negative licensing actions against licensed and registered childcare facilities for noncompliance with the administrative rules only recognizing a religious exemption to immunization against Haemophilus influenza type B, and will not deny licensure or registration to an applicant which will not enforce immunization requirements against individuals/families who attest to objection to such requirements on the basis of religious belief.

The Department through its Childcare Licensing Program is responsible for enforcing the Administrative Rules of Montana (ARM) with regards to certain immunizations for children in licensed and registered childcare settings. (See ARM 37.95.140, 141.). During the 2021 Montana Legislative Session, Senate Bill 215 (SB 215), establishing the Montana Religious Freedom Restoration Act (RFRA), was passed and signed into law, protecting the free exercise of religion. To comply with RFRA in childcare settings, the Department proposed amendments to ARM 37.95.140 under rules notice 37-994 to recognize religious exemption from immunization requirements in certain childcare settings. On August 29, 2022, the Children, Families, Health, and Human Services Interim Committee, having oversight of administrative rules proposed by the Department, informally objected to the rules necessary for compliance with RFRA, temporarily preventing the Department from adopting the proposed rules.

Because the Department has not yet been able to amend its childcare regulations to recognize religious exemptions to the vaccination requirements due in part to the requirements set forth by House Bill 447 (HB 447), to ensure compliance with RFRA, the Department issues this Notice of Enforcement Discretion to allow childcare providers the option of accepting documented exemptions from required immunizations based on the sincerely held religious beliefs of the parents. The Department Affidavit of Exemption on Religious Grounds (form HES-113) can be used by parents to document the religious exemption.

Should providers choose to accept such exemptions, they should notify all parents of children attending the childcare facility. Providers should also notify the Department of acceptance. The Department will exercise its discretion and will not take enforcement action against any childcare provider that enrolls children who have not received one or more of the vaccines listed in ARM 37.95.140 because of sincerely held religious belief(s). This exercise of enforcement discretion will continue until further notice.

On Monday, Nov. 28, at 9 a.m., the Department of Public Health andHuman Services will hold a public hearing via remote conferencing to consider the proposed adoption and repeal of the above-stated rules. Interested parties may access the remote conferencing platform in the following ways:

(a) Join Zoom Meeting at: https://mt-

gov.zoom.us/j/87930897755?pwd=U1JIaDhpbTFEbUNXZEFnMExCTk02UT09, meeting ID: 879 3089 7755, and password: 613397; or

(b) Dial by telephone: +1 646 558 8656, meeting ID: 879 3089 7755, and password: 613397. Find your local number: https://mt-gov.zoom.us/u/knLWqBiCE.

The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Public Health and Human Services to advise us of the nature of the accommodation that you need. Please contact Kassie Thompson, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-

mail [email protected].