(1) School boards may make rules and regulations requiring compulsory vaccination only where there is a threat of epidemic or an actual epidemic. (2) School boards may make rules and regulations requiring tuberculosis and general physical tests by a physician to determine existence of contagious or infectious diseases. (3) School boards may not require a dental examination by a dentist as a prerequisite to attendance in school, because a dentist is not a physician. (4) A school board may require a child in secondary school to take certain health courses as prerequisites to graduation.

~CHOOLS : (1) s·chool boards may make rules and regulations SCHOOL BOARDS : · requiring compulsory vaccination onl~r where there is a threat of epidemic or an actual epidemic . VACCINATIONS : PHYSI CIANS: (2) School boards may make rules and regulations requiring tuberculosis and general physical tests by a physician to determine existence of contagious or infectious diseases . {3) School boards may PHYSICAL EXAMINATIONS: DENTISTS: DENTAL EXAMINATI ONS: SCHOOL COURSES: not requir e a dental examination by a dentist as a prerequisite to attendance in school, because a dentist is not a physician. {4) A school board may require a child in secondary school to take certain health courses as prerequisites to gradua- tion . Opin No . 22 ( 162) II II 371 ( 1 61) f.ia.rch 7(, 1962 Honorable Norman H. Anderson Prosecuting Attorney St. Louiz County Court House Cl ayton, tdtsaouri Dear I4r. Anderson : This is in reply to your letter of October 10, 1961, i nclosing a letter from George \ . Vossbrink and request- inB an opinion f rom this of f ice on the follot11.ng four que stions : 111 . Can a board of education require vaccination when there is no i ndication t hat smallpox is prevalent ? "2. Are tuberculosi s and eeneral phys1.- cal test s i ncluded under its 1935 ruling for medical i nspections f or t he purpose of determining t he ex1otence of a conta- gious or infectious disea se? "3. ~1ay dental examination s be required a s a pre- requisite to attendance in school ? "4. Can the board or education require that a child 1n secondary school take certain health courses as pre-requisites to graduation? l~e l'lill anmter the questions in t he order present ed. Section 163.010, RS~b 1959, reads, 1n part, a a f ollows: Honorable NOrman H. Anderson -2- •tThe board of <tlrectors or board of education shall have power to make all needful rules and regulations f or the organization, 6I'B.ding and govern- ment in the.ir school district -- said rules to take effect when a copy of the same, duly oj,gnod by order or the board, is deposited with the district clerk, whose duty it shall be to trans- mit forthwith a copy of the same to the teachers employed in the schools; said rules may be amended or repealed in 11lcc manner. They shall also have the power to suspend or expel a pupil for conduct tending to the demoraliza- tion of' the school, after notice and a hearing upon chargee preferred, • • • • 11 In the case of In the l.fatter of Rebenack, 62 M:>. App. 8, the st. Louis Court of Appeals upheld a rule of a school board that all children must be vaccinated. The opin:1on in that case doeo not disclose whether an epidemic was preaent or threatened 1n the school district. In the cane of State ex rel. O' Bannon v. Cole, 220 Mo. fiR , 119 S\>1 424, the Supreme Court of Missouri upheld a similar rule requ1r1ng compulsory vaccj,nation in a school district where there \'las an actual smallpox epidemic. On October 29, 1935, this o££1ce issued an opinion to the State Board of Health, Jefferson City, Missouri, in which it \'faa held that the board or education or a school d1atr1ct is authori~ed to make reaaonable rules and regula- tiona respecting compulsoru vaccination and medical inspec- tion, and that the reasonableness ot such rulea and regula- tions are to be determined by the facts cxieting at the time the rules are made, and that, without question, a rule pro- viding for a co~ulsory vaccination without expense to the pupil when smallpox is prevalent w1 thin the district, would be reasonable, as \'tould a rule providing ror medical inspec- tion for the purpoee or determining the ex1etence of conta- gious or infectious disease or the liability or transmitting tho same. Honorable Norman H. Anderson -3- On October 14~ 1946, this office issued an op~on to Honorable A. L. Gates~ Prosecuting Attorney~ Moniteau County, California, Missouri, in which it was held that if there is an epidemic or threat or an epidemic of small- pox, then the school board is authorized to adopt an order requiri.ng all children to be vaccinated against smallpox before they arc permitted to enroll and attend ochool; otherwise not. The 7let General Assembly enacted a law, effective October 13~ 1961, now Section 163. 017, RSMb Cum. Supp. 1961, which reads~ in part, as follows: 111. The d1v1&ion or health or the department of public health and wel- fare, after consultation with the department o£ education, shall pro- mulgate rUles and regulations govern- ing the 1mmu~zat1on against poliomye- litis, smallpox, and diphtheria, to be required or children attending public, private, parochial or parish schools. Tetanus and pertussis may be included 1n the vaccine adminis- tered. The inmun1zat1ons required and the manner and frequency or their administration shall conform to recog- ~zed standards or medical practice. The division of health or the depart- ment of public health and welfare shall supervise and secure the enforce- ment or the required 1omunizat1on pro- gram. "2. It is unlawful for arlf student to attend school for longer than one month unless he has been immunized, as required under the roles and regula .. tiona or the division of health of the department or public health and welfare, and can provide satisfactory evidence or such immunization; pro .. vided, that, 11' within the month, he produces satisfactory evidence or Honorable Norman H. Anderson -4- having begun the process of immuniza- tion, he may continue to attend school as long as the immunization process is being accofll>lished in the prescribed manner. It is unlatrful for any parent or guardian to refuse or neglect to have his child immunized, as required by this section, unless the child is properly exempted. "3. This section shall not apply to any child if one parent or guardian objects in writ~ to his school admin- istrator S§ainat the immunization or the child. tie are or the opinion that Section 163.017, RSM:> Cum. Supp. 1961, does not require any change in the opinions of this office, as expressed in the opinion or October 29, 1935 to the State Board or Health, and the opinion or October 14, 1946 to Honorable A. L. Gates. Section 163. 017 does not abrogate the power or local school boards to make rules and regulations under the provisions or Section 163.010, RSMo, and, when reasonable rules are promulgated under the authority of Section 163.010, RSMO, there is no conflict between such rules and Section 163.017 . Section 163.017 contemplates and estab- lishes a program of immunization to be conducted by the Division or Health of the Department of Public Health and \'lelfare. Such 1umun1zation program 1s not in lieu of any local vaccination program of a school d1ntr1ct, but it is an entirely separate, distinct, and additional immuniza- tion program on a atate\'lide baSis. Of course, any rules and regulations o£ a school board under the authority of Section 163.010 must be reasonable and they must not be in conflict with any state law; and, there£orc, any rule of the school board respecting immunization or vaccination of school children carmot be 1n direct contllct or 1n opposition to the provisions of Section 163.017, RSMb Cum. Supp. 1961. Therefore, in answer to your first question, it is the opinion of this office that there is no change in the Honorable Norman H. Anderson -5- authority of a school board to make reasonable ruleo con- cer.n1r~ the vaccination of school children ~ that district, and the opinion or this office expressed 1n the opinion of October 29, 1935 to the State Board of Ileal th, and the opin- ion of October 14, 1946 to Honorable A. L. Gates remains unchanged. Hence, the Board or Education may not require vaccination trhen there 1s neither an existing nor a threatened epidemic or smallpox. In answer to the second question concerning tubercu- losis and general physical tests, it was held 1n the opinion of October 29, 1935 to the State Board of Health that the school district \•ras authorized to mako reasonable rules and regulations respecting a medical inspection; that the reason- ableness of such rules and regulations are to be determined by the facts existing at the time the rules are made, and that a rule providing for medical inspection f or the purpose a or dete~ the existence of contagious or infectious disease or tho liability of transm1 tting the same would be reasonable . \'lebster• s dictionary def.'ines "tuberculosis" as "an infectious disease caused by the tubercle bacillus. 11 Since tuberculosis is an infectious disease, any rule of the school board under authority of Section 163.010, RSM:> 1959, requiring nny child to be examined by a physi.cian for tho purponc of determining the diseased condition, or the liability or transmitting auch disease, would certainly be reasonable and proper. In anawer to the third question, we refer you t o Section 163. 36o, RSr.t> 1959, \·thich reads, in part, as t'ollows: ''I t shall be unlawt'ul for any child to attend any or the public schools or this state \'lhile arn1cted with any contagious or 1n£ect1oua. d1sease, or while liable to transmit such d1• sea3e arter having been ~osed to the same. For the purpose of deter- mining the diseased condition, or the liability of transmitting such disease, the teacher or board of directors shall have power to require any child to be examined by a physician Honorable Norman H. Anderson -6- or phys1c1ans~ and to exclude such ch1ld from school so long as there is any liability of such disease being transmitted by the same. A refusal on the part of the parent or guardian to have an examination made by a PbUSician or physicians, at the request or the teacher or board of directors., will authorize the teacher or board of d1.rectors to exclude such child from school; • * • .. " The answer to this que.stion will then depend upon the character of the dental examination and the person or phy&1c1an who conducts the examination-. Certainly, there ar~ infectious and contagious diseases of the mouth and teeth, and a reasonable rule requiring an examination by a physician to determine the diseased condition or the liability of transmitting such disease would be proper, in the same manner as any other examination authorized under the oond1 t1ons prevailing in the second question answered above. HOtllever, an examination by a dentist to discover or treat cavities in the teeth presents a different situation. Section 163.360, RSM::>, authorizes the examina- tion to be made b¥ a physician or phy&icUans. The general def1n1t1on of a "pnyeic1en" 1n Webster• s dictionary is given as, 11A person aldlled in ••• the art o~ healing; one <luly authorized to treat diseases •••• " And Section 332.010, run-t> 1959, gives a definition or a "dentist" as nAny person ••• who shall treat or profess to treat, er advertise aa treating., any disease or disorder or lesions of the oral cevity, t~.eth, gums., maxillary bonee, or ex- tract teeth, or repair or fill cavities •••• " However# we do not believe th1e 1s euff1c1ent to classify a dentist as a physician in the sense in wh..ich the ttord f'phys1c1an 1 ' is used in Section 163. 36o. Section 334. 021, RSft> 1959, states as f'ollowa: "Where other statutes or this state use the terms 'physician' , •surgeon•, 1 pract1tione~ of medicine•, 'practitioner of osteopathy', ' board or medical examiners', or 1board. of osteopathic registration and examination • or similar tel'Uls, they shall be construed to mean ph,Js1c1ans and surgeons Honorable Norman H. Anderson -7- licensed under this chapter or the state board or registration for the healing arts in the state of' Missouri. " Under the definition of a "physician•• 1n Section 334.021, RStb 1959, a dent:lst is not a ph.ys1o1an, because a dentist is not licensed under Chapter 334., RSMo, and a dentist is not licensed under the state Board of' Registration for the Healing Arts in t he State of Missouri. Rather, a dentist is licensed Wlder Chapter 332., RSMo, and is under the Missouri Dental Board. Therefore, our anm1er to the third question is that a dentist i ,s not a phys1e1an within the meaning o£ that term as used in Section 163.360, and a school board doea not have authority to require a dental e~nation by a dentist as a prerequisite to attendanc~ 1n school. In answer to the .fourth question, w~ agaln rely on the authority of the school board expres&ed in Section 163.010 which 1e quoted above. Since the school board ma1 make all needful rules and regulations for the organ1~at1on, grading and government in their school district, a reasonabla rule requiring a child in secondary school to take certain health courses as a prerequisite to graduation would seem proper. As further author1tr, ~s,e call your attention to Section 163.170, RSf.t) 1959, whieh reads as follows: ''Physiolog and hygiene, including their several branches, tlith special instruction as to tuberculosia, its nature, causes and prevention, and the errect of alcoh<>l1c drinks, nar- cotics and stil11Ulants on the human .system, shall constitute a part or the course of instruction, and be taught 1n all schools supported wholly or J.n part by iublic money or under state control. 1 tie do not know the exact nature or the "certain health courses" mentioned in the opinion request, but we believe that the usual and noit'tnal cour&es on· general health tfould be included w1th1n the phra$e " phya1o1Qg and hyg1ene 11 which are re(lu1red as a constituent part or the course or instruc- tion in all schools by Section 163~170. We are therefore of the opinion that the Board or Education ma1 require that a child in secondarr school tmte certain health courses as a prerequisite to graduation. Honorable Nonnan H. Anderson -8- COl~CLUSION It is therefore the opi~on or this off~ce~ as follows: 1 . The Board of Education or a school district is authorized to make reasonable rules and regulations re- spect~ compulsory vaccination or immunization of achool children where there is a threat or epidemic or an actual epidemic, and the reasonableness or such rules and regu- lations are to be determined by the faets existing at the time the rules are made, but the Board or Education does not have such power except where there 1s a threat of epidemic or an actual epidemic . 2. The Board of Education of a school district is authorized to make rules and regulations respecting tuber- culosin testo and general physico! tests, to be included 1n an examination of the children of the ochool district, by a physician or physicians for the pt.rpose of determin- ing the existence of contasious or 1n£ect1ous diooase, or the liability or transmitting the same. 3. The Board of Education or a school district does not have authority to require a dental examination by a dentist as a prerequisite to attendance 1n school, because a dentist is not a physician within the meaning or that term as used in Section 163. 36o. 4. The Board of Education of a school district may require thD.t a child in secondary school take certain health courses an prerequisites to graduation under authority or Sections 163. 170 and 163.010, RSMO 1959. The foregoing opinion, wh.ioh I hereby approve. t'las prepared by rey ass1atant, \layne w. Waldo. Very truly yours, Tli)MAs P. EAGIBi'ON Attorney General