Some districts exempt students in special ed from vaccination law

January 6, 2016

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California 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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