What would it take for a Covid-19 vaccine to be listed alongside the measles, chickenpox and polio vaccines required for kids to attend school in Vermont?
The question may soon need an answer: Pfizer and BioNTech are expected to file for emergency use authorization any day now for use in children ages 5 to 11. If the federal regulatory process goes as planned, Covid-19 shots could be available for kids in that age group as soon as Halloween, the New York Times reported Monday.
It would mark the first time the vaccine is available to kids under age 12. Whether it becomes required for children in schools is another story.
Vermont lawmakers have recently legislated in this arena, and in 2015 nixed the philosophical exemption included in the state’s mandatory school vaccination law. But the General Assembly has traditionally left which vaccines to mandate for public and private school attendance up to the experts at the Vermont Department of Health.
The list of required vaccines is maintained by the state’s public health agency and can be amended via rule-making, an administrative process that generally takes several months at a minimum. But emergency provisions could allow the health department to temporarily change its rule almost immediately.
A special legislative panel could object to such an emergency rule, but it couldn’t strike it down outright, according to David Englander, a senior policy and legal adviser at the health department. A contested rule, however, would be weaker if challenged in court.
Laws supersede rules, and lawmakers could also just pass a law in either direction — either to stop the health department from enacting such a mandate or to put one in place if the administration does not do so of its own accord.
“The agency only has as much power as provided to us by the legislature,” Englander said.
Gov. Phil Scott’s administration has strongly encouraged vaccinations for eligible students, including by hosting school-based, pop-up vaccination clinics and announcing a competitive grant program for schools. But it is not considering an emergency rule mandating student vaccines at this time, Jason Maulucci, the governor’s press secretary, said Thursday.
A decision to require Covid-19 shots for school attendance, Maulucci said, would be based on recommendations from the Centers for Disease Control and Prevention’s Advisory Committee on Immunization Practices, as well as discussions with the state’s health commissioner, state epidemiologist and members of the Vermont Immunization Advisory Council.
More than 75% of eligible school-aged children have already begun or completed vaccination, Maulucci said, and the administration expects similarly strong demand in younger children once regulatory approval is granted.
“Only the Pfizer vaccine has been granted full approval for any school-aged children, currently for those aged 16 and older,” Maulucci said. “We await more information from the FDA on when full approval might be given for younger individuals and for which vaccines.”
A small number of individual school districts elsewhere in the country — including the Los Angeles Unified School District, one of the country’s largest public school systems — have moved to mandate the vaccine for eligible students.
But they are in the minority for now, and legal challenges are expected. And since the process for requiring school immunizations in Vermont is “so thoroughly fleshed out in law,” there is a “fairly strong” argument that individual districts should not move on their own before the state acts, according to Mark Oettinger, a former general counsel for the Agency of Education.
“In the absence of a mandate from the Governor, or emergency rules from [the Vermont Department of Health], the answer may be that public schools cannot require Covid vaccinations by fiat at the local level,” he wrote in an email.
Nearly a quarter of all Covid-19 infections in Vermont have been in children, according to a recent report by the American Academy of Pediatrics and Children’s Hospital Association.
