Request By:
Robert N. McLeod, M.D.
Children's Clinic
401 Bogle Street, Suite 102
Somerset, Kentucky 42501
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
You have asked the Office of the Attorney General to consider the issue of tuberculin testing for pre-school children. You referenced the consideration of this subject by the State Board of Education. You further brought to our attention the provisions of KRS 214.034. Your question is whether the State Board of Education may, by regulation, make it permissible rather than mandatory that pre-school children be tested for tuberculosis.
The school law provision relevant to this matter is KRS 158.036 which reads as follows:
"(1) Except as otherwise provided in KRS 214.036, effective the beginning of the 1976-1977 school year for a two year period no child shall be eligible to enroll as a student in any public or private elementary or secondary school without first presenting a certificate from a duly licensed medical or osteopathic physician stating that the child has been tested for tuberculosis according to regulations of the department for human resources. Thereafter, such schools determined to have an enrollee infection rate of five-tenths of one percent or higher shall be required to comply with the provisions of this section.
"(2) Such schools determined to have a proven enrollee infection rate below five-tenths of one percent are exempt from the provisions of this section except that the secretary of the department for human resources may require tuberculin skin tests to be administered according to the provisions of this section at five year intervals.
"(3) The governing body of private and public schools shall enforce the provisions of this section." (Emphasis ours.)
Thus, it can be seen from this language that it is no longer statutorily required that children be tested for tuberculosis unless a school is determined to have an enrollee infection rate of five-tenths of one percent or higher. We believe it is important to point out in 1976 right after this provision became law, this Office determined that "enrollee" meant initial enrollment in the school system or transfer into the school system. See OAG 76-256, copy attached.
Our review of the law relative to your inquiry cannot end with school law statutes. KRS Chapter 214 covers the subject of communicable diseases. KRS 214.034 requires, unless excepted from its provisions under KRS 214.036 (medical or religious objection) that, ". . . all parents, guardians, and other persons having care, custody or control of any child shall have the child tested for tuberculosis. . . ." This required testing is to be done in accordance with regulations adopted by the Department for Human Resources. While the Department for Human Resources has adopted regulations setting out schedules for active immunization of normal infants and children against diphtheria, tetanus, pertussis, polio myelitis, rubeola (measles) and rubella which immunization is also required under KRS 214.034, unless excepted for medical or religious reasons, we can find no regulation setting up a testing schedule for tuberculosis. See 902 KAR 2:060. Nevertheless, we believe the important point to be made is that it is mandatory by law that children are to be tested for tuberculosis and, of course, treated if the child is found to be infected with tuberculosis.
Therefore, in view of the above, it is apparent that although it is principally no longer required that a child have been tested for tuberculosis as a condition to be met before enrolling in school, and the state board could so recognize this fact by appropriate regulation, the law does clearly still require that all children are to be tested for tuberculosis. Even absent a required schedule for tuberculosis testing, we are of the opinion children should be so tested before enrolling in school for the first time.