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On September 4, HHS's OCR sent a letter to the 61 state, local, and territorial awardees of the Vaccines for Children (VFC) Program—through which the federal government furnishes pediatric vaccines free of charge for administration to children and youth who are enrolled in Medicaid, uninsured, or underinsured—as well as to VFC-registered providers, emphasizing that VFC providers must furnish pediatric vaccines in accordance with any state laws "relating to any religious or other exemption." In a press release, HHS frames the letter as part of the Administration's overall prioritization of protections for religious freedom protections. This letter creates more questions than answers, however.
At face value, the letter would seem to have no impact. The VFC Program is a federal system for supplying vaccines; it does not require any child to receive any particular vaccine, meaning that exemptions never come into play. However, based on a separate letter HHS addressed to West Virginia's VFC program administrators, it appears that HHS may be threatening to reduce federal VFC and Medicaid funding if, under certain circumstances, a state fails to allow religious exemptions for state-level school vaccination requirements.
HHS's letter to West Virginia notes that, although the state's school vaccination requirement allows only for medical exemptions, the Governor recently determined that religious exemptions must also be available pursuant to the state's Equal Protection for Religion Act—a position endorsed by a state trial court. HHS thus concludes that "West Virginia is obligated to ensure that its [VFC] providers comply" with the state law on religious exemptions and emphasizes that state oversight of this requirement is a condition both of ongoing receipt of VFC vaccines, as well as overall federal Medicaid funding.1
Questions remain, however. It is not clear what it means for a state to ensure that a VFC provider complies with religious exemptions for a vaccination requirement, since it is typically the school—not the child's pediatrician—that adjudicates requests for religious exemptions from vaccination requirements. It is also not clear how HHS may approach this issue in other states, given that states—not HHS—are the ultimate authorities on how to reconcile apparent conflicts in their own state laws.
This letter comes just a week after the FDA's move to approve the COVID-19 vaccine for a narrower eligible groupand a day after Florida officials announced plans to eliminate vaccine mandates for school children, highlighting parallel shifts in policy and practice.
Footnote
1.In their Medicaid State Plans, states must certify compliance with VFC Program requirements.
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