Request By:
J. Burton Douglass, D.M.D.
Chairman
Harlan County Board of Health
Harlan, Kentucky 40831
Opinion
Opinion By: Robert F. Stephens, Attorney General; Mark F. Armstrong, Assistant Attorney General
We are in receipt of your letter in which you ask our opinion on the procedure whereby a county health department is able to ensure that all school children are properly immunized as required by KRS 158.035.
Unless exempted by KRS 214.036, KRS 158.035 requires all school children to be immunized against various diseases. KRS 214.034 also requires the parent, guardian, or custodian of a child to have him immunized against these same diseases in accordance with the regulations of the Department for Human Resources, see 902 KAR 2:060.
Because KRS 214.034 and 158.035 both regulate immunization of children, they are in pari materia and are to be construed together in an harmonious fashion, cf., Milner v. Gibson, 249 Ky. 594, 61 S.W.2d 273 (1933). In the present context, if the county health department has the authority to enforce KRS 214.034, it also has the authority to enforce KRS 158.035.
In regard to its authority, county health departments have the duty to enforce all applicable public health laws and regulations, see KRS 212.240(1). Because the immunization requirement of KRS 214.034 and, by construction, of KRS 158.035, are health laws, the county board of health is authorized to enforce their requirements.
There are a number of procedures whereby these statutes may be enforced. First, the board may enter an order under KRS 212.245(6) directing the parent, guardian, or custodian of a child to have it immunized. Should the person mentioned in the order fail to comply, the board of health may have the person criminally prosecuted under KRS 212.990(3) by swearing out a complaint.
Second, the parent, guardian, or custodian of the child who fails to have him immunized as required by KRS 214.034 is guilty of a misdemeanor under KRS 214.990(6). The board of health may proceed directly against the violator, without issuing an order, by having a criminal complaint sworn out against the offender.
We have restricted this opinion to the authority of a county health department to ensure that children are properly immunized. Nothing in this opinion should be interpreted to preclude school or other officials from fulfilling their duties in requiring children to be immunized, see, e.g. OAG 76-256 (May 12, 1976).