Credit: Jane Meredith Adams/EdSource TodayCalifornia now has one of the strictest vaccination laws in the country, but ambiguity in its wording has left school districts deciding on their own whether to grant special education students a de facto exemption.
The California Department of Public Health and the California Department of Education have not yet issued guidance on how to apply the vaccination law to special education students. Under the federal Individuals with Disabilities Education Act, students who qualify for special education services, such as speech therapy or small group instruction, must receive those services. Failure to comply leaves districts vulnerable to lawsuits from parents.
At the same time, beginning July 1, the state law will require all kindergarten, transitional kindergarten and 7th-grade students to be vaccinated against 10 communicable diseases before they are allowed to attend school, unless they have a medical condition that makes them unable to do so. Under the new law, parents can no longer refuse to vaccinate their children in public or private schools and child care centers based on their personal beliefs.
“We are not holding anyone to vaccination requirements that would interfere with access to special education programs,” said Dr. Kimberly Uyeda of the Los Angeles Unified School District.
With kindergarten enrollment beginning this month in the Sacramento City Unified School District and continuing through the spring in districts around the state, school lawyers are parsing the law on their own.
The intent of the new law is “to increase community immunity,” said Shannan Martinez, a spokeswoman for state Sen. Richard Pan, D-Sacramento, who co-authored the legislation, Senate Bill 277. Pan said he acted to address rising numbers of unvaccinated children and a corresponding increase in outbreaks of diseases once considered obliterated in the U.S., including the measles outbreak in Disneyland in 2014.
But the law appears to have unwittingly created a loophole that could be used to exempt the 10 percent of students who are enrolled in special education, a number far greater than the 2.5 percent of kindergarten students who in 2014-15 opted out of vaccinations through personal belief exemptions.
The Los Angeles Unified School District, which serves more than 640,000 K-12 students and is the largest district in the state, has decided not to require students in special education to comply with required immunizations if that requirement would prevent them from getting services, including instruction in general education classrooms, to which they are legally entitled, said Dr. Kimberly Uyeda, director of student medical services for the district.
“We are not holding anyone to vaccination requirements that would interfere with access to special education programs,” Uyeda said. The decision was based on advice from district legal counsel, she said. The district serves about 73,000 special education students, but only “a very small number” are not fully vaccinated, she said.
“The broadest way the law can be interpreted is that special education students get access to everything, regardless of immunization status,” said Jennifer Nix, an attorney with School and College Legal Services of California. In terms of the risk of lawsuits from special education parents, “it is the safest route, but I don’t know if it’s the right route,” Nix said.
While the immunization law specifically exempts students who are homeschooled or who are enrolled in independent study with no classroom attendance, it does not use the word “exempt” to describe the status of students in special education. Instead, the law states that it does not “prohibit” special education students from access to services. Special education students wouldn’t necessarily be attending school, Martinez said.
Unlike students who are homeschooled or studying independently outside of classrooms, students who receive special education services – they number one in 10 students in California, according to a 2015 report from the Legislative Analyst’s Office – are in school buildings and almost always spend time in general education classrooms, physical education classes or cafeterias.
Jonathan Read, a partner at the law firm Fagen Friedman & Fulfrost, said that in the absence of guidance from the state, the immunization law is being interpreted in two ways. The first is that special education students are required by federal law to be educated in the least restrictive environment, which often means spending time in general education classrooms, and that right cannot be limited by a state law requiring them to be vaccinated to obtain access.
The second interpretation is that immunizations are a health and safety concern. While districts are obligated to make inclusive special education environments available, according to this line of reasoning, Read said, it is up to parents to decide whether they want their child to have access to those environments by having their child vaccinated.
“School districts are grappling with how they want to approach this right now,” Read said.
“There are going to be some conflicts,” said Maggie Roberts, associate managing attorney at Disability Rights California, the state’s watchdog group. “School districts will feel they have the right to keep out kids” who are not immunized, she said, while parents will press schools to fulfill their obligation to provide special education services, even if their children are not vaccinated.
Orange County has made the strongest public statement in the state by insisting that special education students be vaccinated along with all other students on campus, except those with medical exemptions. “If you exempt all special education kids, you’re going to decrease the vaccination rate by 11 or 12 percent,” said Ronald Wenkart, general counsel for the Orange County Office of Education. “I don’t see how you can interpret the law that way.”
Wenkart has advised school districts in the county that special education students must be vaccinated.
Other districts are planning for scenarios that could include providing special education services at home for unvaccinated students or meeting with the students in separate facilities at or near school grounds.
In the Sacramento City Unified School District, Terri Fox, lead district nurse, said one plan could be to refuse to admit an unvaccinated special education student who requires only an hour or two a week of speech therapy, for instance, and instead provide services to the student offsite. The student would be homeschooled for the remainder of his or her instruction.
But unvaccinated students who require extensive academic, behavioral and therapeutic assistance all day in a special education classroom “will probably have to be admitted,” Fox said.
In the Long Beach Unified School District, Joyce Cox, program specialist for student health services, said a formal policy has not been adopted. But one idea might be to offer temporary home instruction for students in special education, she said. “That is a way you could still deliver services to the child, and still comply with the state law – but that decision has not been made,” she said.
Gail Williams, director of health services at Fresno Unified, said she will meet with parents of special education students to encourage them to vaccinate their children. If that fails, the path is not clear, she said. “Our numbers are small,” she said. “We will handle it on a case-by-case basis.”
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HJ5 4 years ago4 years ago
I also was vaccine injured. I had received all of my childhood vaccinations and was hospitalized after most of them as a kid with severe breathing issues, reactions, I was chronically sick. I went for a booster shot that was required in college and the area around the injection site turned black and started to die. When I returned to the hospital, they told me it was a reaction but only cosmetic and nothing could … Read More
I also was vaccine injured. I had received all of my childhood vaccinations and was hospitalized after most of them as a kid with severe breathing issues, reactions, I was chronically sick. I went for a booster shot that was required in college and the area around the injection site turned black and started to die. When I returned to the hospital, they told me it was a reaction but only cosmetic and nothing could be done. My freakin butt and leg was dying! I got extremely lucky and found an old school doctor that had seen this before and he injected me with salt water in the vaccination spot for 15 days and it eventually healed. He said it had to be washed out of the tissues.
Fast forward, I found out only recently we have a multitude of genetic issues with toxic copper, MTFHR and other inabilities to process toxins that can cause extreme issues with vaccine reactions. My niece had the same reaction as I did to a routine vaccination where her skin around the vaccine injection died but no doctor would preform the salt water injections (my doctor was not licensed to work with kids). Her leg in that area died and scarred down. She is missing half of her butt cheek. These situation are real. People are not anti-vaccination, they are pro-questioning and want more information on why these things are happening to us.
Laurie Dedmon 4 years ago4 years ago
I am a special education teacher, and I feel all kids should be vaccinated. In special education our job is to get children at their best ability. We want kids to be treated well, and get the same respect that other children do in school. Don't children have the right for safe schools? What happens to babies and pregnant mothers? This selfishness is unreal. They are saying to babies and people who cannot get … Read More
I am a special education teacher, and I feel all kids should be vaccinated. In special education our job is to get children at their best ability. We want kids to be treated well, and get the same respect that other children do in school. Don’t children have the right for safe schools? What happens to babies and pregnant mothers?
This selfishness is unreal. They are saying to babies and people who cannot get immunized that you are out of luck. I read the comment about why are you worried if you are vaccinated. Very young children and people with immune disorders cannot get the vaccines for medical reasons. The student in the class is not the only victim. Grandparents, infants, and those with diseases either cannot handle the vaccine or are too young to take it. Do people have to die like flies? Keep your unvaccinated children at home. The parents will change their mind when the child gets sick. What will they do then?
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A Special Educator Too 4 years ago4 years ago
The “selfishness”? You dare call parents selfish without knowing their individual circumstances that led them to their own private medical decisions regarding vaccination? I am also a special educator, and I understand that vaccines are not one-size-fits all, and I also understand that vaccine injuries are very real for some children, whether or not this fits your narrative. There certainly wouldn’t be a federal vaccine court program called the Vaccine Injury Compensation Program, which … Read More
The “selfishness”? You dare call parents selfish without knowing their individual circumstances that led them to their own private medical decisions regarding vaccination?
I am also a special educator, and I understand that vaccines are not one-size-fits all, and I also understand that vaccine injuries are very real for some children, whether or not this fits your narrative. There certainly wouldn’t be a federal vaccine court program called the Vaccine Injury Compensation Program, which was created to compensate vaccine injury victims, if there were no such injuries in the first place.
The vast majority of parents refusing further vaccinations are parents who unfortunately have learned the hard way after a loved one was harmed by an adverse event following vaccination. You can’t very well become vaccine injured, without first vaccinating, no? If you had a child become severely injured or die, would you vaccinate further siblings of that child, or would you hold off and start investigating? What would you chose to do to protect your family?
There is nothing about vaccine injury that skips children with special needs either; in fact they can go hand in hand- and fortunately, despite California state law, children with extensive IEPs who also happen to be vaccine-injured are still protected under federal law due to FAPE, which stands for a “free, appropriate, public education.”
Shame on you for your overgeneralized, cookie cutter “one size fits all” view of others coming from different circumstances of life. Would you say the same about any of your students, special education or not, who is Hep.B positive, or HIV positive? Such students continue to enjoy the right to attend school, as they should, with privacy, and it is your job to educate them. Think about the irony of a student who is positive for Hepatitis B attending school, while a child that is negative for Hepatitis B but missing even one dose of Hep B vaccine is excluded from school. Welcome to SB 277 law.
Certainly unvaccinated students who don’t currently have an active illness should enjoy the same courtesy and respect, no? If there is an outbreak, the law already protects other students by sending ill students home to be quarantined, as well as keeping unvaccinated kids home during outbreaks as well. So we already have a solution. In the meantime, I’d suggest getting back to teaching all of your students.
Kiara 6 years ago6 years ago
People: Vaccinate. Your. Freaking. Kids. Are you yourself vaccinated? Are you able to walk? Are you alive? Thank your parents, the law and vaccines. Stop jumping on the "Vaccines cause Autism" bandwagon and use your common sense. You are alive and well because of them. There are people in third world countries dying everyday from diseases that we don't worry about because of the access we have to preventative medications. Maybe watching your child suffer … Read More
People: Vaccinate. Your. Freaking. Kids. Are you yourself vaccinated? Are you able to walk? Are you alive? Thank your parents, the law and vaccines. Stop jumping on the “Vaccines cause Autism” bandwagon and use your common sense. You are alive and well because of them. There are people in third world countries dying everyday from diseases that we don’t worry about because of the access we have to preventative medications. Maybe watching your child suffer a long, painful death from one of these preventable diseases will make you use your brains. What kind of parent willingly puts their child through that?
The .000000001% chance of Autism & Polio/Malaria/death/chronic illness.
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Norma Hanby 5 years ago5 years ago
I have 2 children with autism
My daughter was a normal girl and after getting the 2 years old vaccines, just one day later, she stopped talking and behaved like an autistic child
Probably your kids are healthy and you have a good experience but my experience about that is different.
Barbara Kapitan 6 years ago6 years ago
I think the percentage of special education students is actually higher than the percentage stated. When you figure students receiving Resource Services, Special Day Class Services and Speech and Language Services, I think you will find that the percentage is higher.
Alexandra 6 years ago6 years ago
If your kid is fully vaccinated, and you're one of the firm believers that vaccines prevent diseases 100%, then why are you so afraid of those unvaccinated kids? The leading cause of developmental diseases is caused by neurotoxins. Vaccines are the biggest culprit of neurotoxins. Gelatin, sorbitol, sodium chloride, bovine cow serum, egg protein and human albumin. If you're a vegan, vaccinations should be against your beliefs. vaccines contain contains Mercury (50x the exceeded levels … Read More
If your kid is fully vaccinated, and you’re one of the firm believers that vaccines prevent diseases 100%, then why are you so afraid of those unvaccinated kids? The leading cause of developmental diseases is caused by neurotoxins. Vaccines are the biggest culprit of neurotoxins. Gelatin, sorbitol, sodium chloride, bovine cow serum, egg protein and human albumin. If you’re a vegan, vaccinations should be against your beliefs. vaccines contain contains Mercury (50x the exceeded levels recommended by the FDA). Contains formaldehyde (that stuff used for embalming bodies before burying them) phenoxyethanol and aluminum phosphate, • Human albumin: The protein portion of blood from pooled human venous plasma; when injected causes fever, chills, hives, rash, headache, nausea, breathing difficulty, and rapid heart rate. Injecting “pooled blood” can result in a loss of body cell mass and cause immunodeficiency virus infection, or contain SV40, AIDS, cancer or Hepatitis B from drug addicts.
I mean, don’t take the doctor’s word that these ingredients are safe to inject straight into your bloodstream. Do research.
Rina Shaffer 7 years ago7 years ago
#1 Vaccines do not guarantee immunity. #2 Many shed the disease for weeks after vaccination. #3 Most adults are not fully vaccinated. Given those 3 points, I cannot comprehend the logic of forced vaccination of all children. If a recently vaccinated child sheds the illness and a teacher or parent contracts the illness, it still has the potential to spread to all (adults, unvaccinated kids, and vaccinated kids on whom the vaccine was not effective). … Read More
#1 Vaccines do not guarantee immunity. #2 Many shed the disease for weeks after vaccination. #3 Most adults are not fully vaccinated.
Given those 3 points, I cannot comprehend the logic of forced vaccination of all children. If a recently vaccinated child sheds the illness and a teacher or parent contracts the illness, it still has the potential to spread to all (adults, unvaccinated kids, and vaccinated kids on whom the vaccine was not effective). Herd immunity is blown out the window! At any rate, my son is a VERY healthy, has an IEP for dyslexia and is unvaccinated and I’m considering a move to San Diego. Anyone know what SD’s approach is? What a stupid pain. Government over-stepping.
Carrie Minault 7 years ago7 years ago
What has not been mentioned is that some of these Special Education students who will not be getting vaccinated are working with paraprofessionals who are now going to be risking exposure to illness and possible spread to other students and/or their own families. This, on top of the fact that some of these unvaccinated students are the worst offenders when it comes to uncovered coughs and sneezes. Add to this behavioral issues, such as … Read More
What has not been mentioned is that some of these Special Education students who will not be getting vaccinated are working with paraprofessionals who are now going to be risking exposure to illness and possible spread to other students and/or their own families. This, on top of the fact that some of these unvaccinated students are the worst offenders when it comes to uncovered coughs and sneezes.
Add to this behavioral issues, such as spitting or biting and it’s even more concerning. I agree that we want to provide all the help we can for special education students, but to make it so that special education students are not required to be immunized like the rest of the students at their age level amounts to reverse discrimination. In districts with a large number of special education students, you could have a lot of students who potentially will not be immunized. I imagine that the same special education parents who would threaten to sue haven’t thought about what special education would look like without the huge number of underpaid special education paraprofessionals that work with their children daily.
Kristie Burchit 7 years ago7 years ago
This article only tells half the story. Will these districts pursue court orders against parents of children on an IEP for not complying with vaccination mandates? We know OC legal counsel recommends just that. Why arent these other districts being asked this question?
Paul Carroll 7 years ago7 years ago
The law itself is a travesty of justice. Coerced medical procedures, in general, are a pretty bad idea -- but they are especially bad when an abundant pile of evidence demonstrates that vaccines can and do cause harm-- to some people. Among the demonstrated possibilities -- brain damage, autoimmune disorders, sudden infant death, seizures, and other neurological damage... to name a few. People think this is some sort of "conspiracy theory" -- but there … Read More
The law itself is a travesty of justice. Coerced medical procedures, in general, are a pretty bad idea — but they are especially bad when an abundant pile of evidence demonstrates that vaccines can and do cause harm– to some people. Among the demonstrated possibilities — brain damage, autoimmune disorders, sudden infant death, seizures, and other neurological damage… to name a few.
People think this is some sort of “conspiracy theory” — but there are legitimately hundreds of peer-reviewed articles on these very topics, and entire scientific textbooks on some of them (see “Vaccines and Autoimmunity” published by Wiley-Blackwell (if you have $165 to drop).
The person in the best position to know if there is a risk, based on family history or any other variable — is the parent. The person in the best position to catch an adverse reaction and cease a particular course of immunizations — is the parent. It won’t suddenly drop immunization rates massively to allow people a free choice in the matter, there was at most two or three percent even partially exempted prior to this draconion law. But now parents are being harassed, bullied, and coerced into a forced medical procedure– when for some of their children it is very harmful.
Sheer insanity. And sheer heartlessness, for anyone who doesn’t understand the pain this is causing.
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Alexandra 6 years ago6 years ago
I agree with your comment. Thank you for sharing the title of the book. I will definitely look into it!
Pamela Zinn MS 7 years ago7 years ago
One in ten kids needing special help in California? How is that acceptable? Doesn’t it make more sense for state mandates to go toward prevention of pediatric brain damage?
Mimi 7 years ago7 years ago
I have a son with an IEP. He will be in middle school soon. He has to get one more shot and that is the tDap shot. Over the years since learning more about him and autism,I don't care for the shots. I don't want him to get a shot,even if it's the last one. The reason why they are trying to figure out how to work this vaccination law is because they know that … Read More
I have a son with an IEP. He will be in middle school soon. He has to get one more shot and that is the tDap shot. Over the years since learning more about him and autism,I don’t care for the shots. I don’t want him to get a shot,even if it’s the last one. The reason why they are trying to figure out how to work this vaccination law is because they know that what they’ve already done has damaged out children. They better not ever deny anything from anyone with special needs! Plus,they’re always coming up with new shots. Smh horrible!
Judi Ellis 7 years ago7 years ago
Well, surprise, surprise. Perhaps the school district figured these precious children were already damaged enough.
Louise 7 years ago7 years ago
Absolutely no one should be vaccinated..ever. They are trash run by the government that has no good will for anyone. In this country . To vaccinate our precious children is the same as committing murder
Joshua Coleman 7 years ago7 years ago
The language of Amendment (h) of SB277 can be interpreted different ways. However, at the Assembly Health Committee hearing at the state Capitol on June 9, 2015 the co-author of the bill Senator Ben Allen and someone from the department of education clarified its intention very well. I have edited a video showing this amendment discussed and clarified here. https://youtu.be/bcubK_YtAVw If you are worried my video has been edited deceptively and … Read More
The language of Amendment (h) of SB277 can be interpreted different ways. However, at the Assembly Health Committee hearing at the state Capitol on June 9, 2015 the co-author of the bill Senator Ben Allen and someone from the department of education clarified its intention very well. I have edited a video showing this amendment discussed and clarified here. https://youtu.be/bcubK_YtAVw
If you are worried my video has been edited deceptively and would like to view the entire Assembly Health Committee UNCUT you can view it here… https://www.youtube.com/watch?v=D5zzzaLXv-8 or even download it direct from California Senate Archive http://senate.ca.gov/media-archive Just look up “Senate Health Committee” June 10, 2015.
I hope this will better inform everyone of what the California State law is.
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bmommyx2 7 years ago7 years ago
Thank you so much for this information you have left in the comments. I was dreading the though of searching for it myself. I have a soon to be kindergartener with an IEP & our dist hasn't said what they are doing & I haven't wanted to ask yet. I'm beyond thrilled at the actions of LAUSD, and beyond horrified by the OC Board of Ed. Also thanks to you & … Read More
Thank you so much for this information you have left in the comments. I was dreading the though of searching for it myself. I have a soon to be kindergartener with an IEP & our dist hasn’t said what they are doing & I haven’t wanted to ask yet. I’m beyond thrilled at the actions of LAUSD, and beyond horrified by the OC Board of Ed. Also thanks to you & your beautiful son for all you have done in this fight sending <3 to both of you. Both of you are Warrior Heros. I'm just grateful I happened upon this & I'm sharing far & wide. 🙂
Kayla Wildman 7 years ago7 years ago
SB277 as originally introduced would have violated special needs children's right to FAPE. When this issue was raised in legislative committee hearings, Section 120335(h) was added to SB277 to exempt children who qualify for IEPs from the other provisions of Section 120335. The legislative intent of Health and Safety Code Section 120335(h) should be perfectly clear to any school district attorney who reads it and reviews videotapes or transcripts of the legislative hearings. … Read More
SB277 as originally introduced would have violated special needs children’s right to FAPE. When this issue was raised in legislative committee hearings, Section 120335(h) was added to SB277 to exempt children who qualify for IEPs from the other provisions of Section 120335. The legislative intent of Health and Safety Code Section 120335(h) should be perfectly clear to any school district attorney who reads it and reviews videotapes or transcripts of the legislative hearings. If school districts do not honor the legislative intent of Section 120335(h), parents will take them to court, and the parents will win.