In Orange County, home to the Disneyland measles outbreak that spread to seven other states and fueled a strict California vaccination law this year, attorneys for the Orange County Department of Education have stated that the new vaccination requirements apply equally to special education students, a group that some thought would be exempt because of their federally protected right to educational services.
In a memo issued last month, the Orange County Department of Education has advised its 28 school districts that students in special education must comply with the law, which as of July 1, 2016, gives students who are due to be vaccinated three options: obtain a medical exemption to the required vaccinations, enroll in homeschooling or independent study, or be vaccinated before attending school. The law removed, as of Jan. 1, 2016, the ability of parents to refuse to vaccinate their children in public and private school because of personal opposition.
“The law doesn’t say they are exempt,” said Ronald Wenkart, general counsel for the Orange County Department of Education and the author of the memo. If the lawmakers who drafted the legislation had wanted to exempt special education students, “they could have put an exemption in there,” he said.
“The law doesn’t say they are exempt,” said Ronald Wenkart, general counsel for the Orange County Department of Education.
Many parents who opposed the new vaccination law, known as Senate Bill 277, believed that special education students would be exempt because of language in the bill, inserted late in the legislative process, that they felt guaranteed federally protected educational services no matter what. The law states that it “does not prohibit” a student who qualifies for a special education from “accessing any special education and related services.” No details are provided.
But the meaning of the phrase “accessing any special education and related services” has not yet been clarified by the California Department of Public Health, which is charged with issuing regulations and guidance to schools about the vaccination law. The Orange County Office of Education appears to be one of the first education agencies to offer an interpretation.
Its memo has surprised and upset some parents of unvaccinated students in special education, said Kristie Sepulveda-Burchit, executive director of Educate Advocate, a Southern California-based nonprofit organization of parents of children with special needs.
“There’s a lot of anxiety, a lot of frustration and the feeling that we were lied to,” Sepulveda-Burchit said. “Pretty much anyone you talk to was under the impression that students with an IEP (Individualized Education Program) were exempt from the bill.”
But that is not how the Orange County Department of Education sees it.
“I don’t think there is any difference between general education and special education in terms of vaccinations,” Wenkart said. “It’s the same rules.”
He said the federal guarantee of a “free and appropriate education” for students with disabilities does not conflict with the state law requiring that students be vaccinated.
“A child is entitled to a free and appropriate education and you also have a legal obligation to vaccinate your child,” he said. Wenkart did not provide further explanation about how schools would provide special education services to unvaccinated students.
He added, “If a parent chooses to violate the law, consequences could follow.” After notifying parents in writing about the requirements of Senate Bill 277, school districts could contact the Orange County Health Care Agency for assistance, he said.
And parents could end up in court, he said. “They’d have to present what would be their reason for not vaccinating their child,” Wenkart said. “If they believe vaccinations are harmful, the burden of proof is on them and they’d have to provide medical backup.” A school district could seek a court order to force parents to comply with the law, he said.
The legal opinion of the Orange County Department of Education is not the final word. The California Department of Public Health said that with regard to special education students, it “is reviewing the new law and meeting with partners to determine what guidance might be needed.”
Jennifer Nix, an attorney with the Santa Rosa-based School and College Legal Services of California, which advises school districts in counties that include Sonoma, Marin and Mendocino, noted that the federal law is clear in requiring that students who qualify for special education receive those services.
“Federal law always trumps state law, if they can’t be implemented at the same time,” Nix said.
Paul Lavigne, executive director of the Greater Anaheim Special Education Local Plan Area, a regional organization that oversees special education services in districts, said his organization is waiting for further guidance.”It’s one of these situations where the interpretation of the law is going to be the issue,” he said.
At the board meeting scheduled for Monday at the Orange County Department of Education in Costa Mesa, Sepulveda-Burchit and other members of Educate Advocate are “hoping to get some more answers,” she said.
“This brings fear to a whole other level for parents of kids with special needs,” she said of the memo.
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Annie Marks 7 years ago7 years ago
I would agree that getting your child vaccinated is a good way to keep them healthy. That is awesome that there are vaccines that are available to help your child avoid catching different diseases and illnesses. Thank you for your post, I’ll definitely be getting my little one the vaccines she needs to stay healthy!
Kayla Wildman 7 years ago7 years ago
Ronald Wenkart didn't do his homework. If he had studied the records of Senate and Assembly hearings on SB277, he would have known that the legislative intent of Section 12335(h) was indeed to give students who quality for IEPs an exemption. For example, the Agenda for the California State Assembly Health Committee, Tuesday, June 9, 2015: Under "Comments" item 18 was "Suggested Amendments" and (c) was titled "Special education students must have … Read More
Ronald Wenkart didn’t do his homework. If he had studied the records of Senate and Assembly hearings on SB277, he would have known that the legislative intent of Section 12335(h) was indeed to give students who quality for IEPs an exemption. For example, the Agenda for the California State Assembly Health Committee, Tuesday, June 9, 2015: Under “Comments” item 18 was “Suggested Amendments” and (c) was titled “Special education students must have access to services.” The suggested amendment was “Section 120335(h) Nothing in this section shall prohibit a pupil that qualifies for an individualized education program, pursuant to federal law and Secton 56026 of the Education Code, from accessing any special education and related services required by their individualized education program.” The chaptered amendment begins with different language, “This section does not prohibit a pupil who qualifies…” but the language still expresses the legislative intent to provide an exemption for special education students.
No doubt the issue will be taken to court and if the judge is competent and honest, Wenkart’s mis-interpretation of Section 120335(h) will be struck down.
Jen 8 years ago8 years ago
Obtaining a medical exemption, homeschooling or being fully vaccinated are not the only three options for students who are currently in school. The article failed to mention that if a child has a personal belief exemption on file before January 1, 2016, they are grandfathered in until they reach the next "grade span." This means that if they are going into any grade other than K or 7th, they are grandfathered in until 7th grade. … Read More
Obtaining a medical exemption, homeschooling or being fully vaccinated are not the only three options for students who are currently in school. The article failed to mention that if a child has a personal belief exemption on file before January 1, 2016, they are grandfathered in until they reach the next “grade span.” This means that if they are going into any grade other than K or 7th, they are grandfathered in until 7th grade. If they’re starting 8th grade or above in 2016, they do not need anything but the PBE for the rest of high school.
Coree 8 years ago8 years ago
How is anyone able to enforce this it's not even a law yet? You can't mandate a law that isn't a law yet.... Also the day it becomes a law it will be in litigation. You can't mandate a law that is in litigation... It will always be in litigation because people like myself will always be fighting this in court.... Read More
How is anyone able to enforce this it’s not even a law yet? You can’t mandate a law that isn’t a law yet…. Also the day it becomes a law it will be in litigation. You can’t mandate a law that is in litigation… It will always be in litigation because people like myself will always be fighting this in court….
Andrea Cspine 8 years ago8 years ago
Will we be able to sue the school district when our special needs child has a reaction?
Kristie Burchit 7 years ago7 years ago
No they have no liability. Neither does pharma. Hence the push for more and more vaccines in the schedule. Follow the $$.