The New Vaccination Law: Parents Withdraw Challenge, Now What?

11.21.2016

On June 30, 2015, Governor Jerry Brown signed Senate Bill 277 ("SB 277"), which eliminated the exemption from mandatory vaccinations based on personal beliefs prior to enrollment in a public school. The law, which went into effect on January 1, 2016, prohibits preschools, elementary schools, and secondary schools—whether public or private—from admitting children for the first time or advancing them to seventh grade, unless they are immunized. Prior to admission, children must present documentation of immunization for diphtheria, haemophilus influenza type b, measles, mumps, pertussis (whooping cough), poliomyelitis, rubella, tetanus, hepatitis B, and varicella (chicken pox).

Up until July 1, 2016, unvaccinated children who provided a letter of affidavit stating beliefs opposed to immunization prior to January 1, 2016, were allowed to enroll anywhere, until they entered the next grade span. Grade spans run from birth to preschool, kindergarten (including transitional kindergarten) through sixth grade, and seventh to twelfth grade. The law does carve out an exception as children may still receive medical exemptions with a written statement from a licensed physician stating immunization is not considered safe due to the physical condition or medical circumstances of the child. The physician’s written statement must include the specific nature and probable duration of the medical condition or circumstances, which may include family medical history.

Since July 1, 2016 has now come and gone, school districts may not admit for the first time or advance any student to the seventh grade, unless he or she meets the immunization requirements.

Challenge to the Vaccination Law
Seventeen parents on behalf of their children ("Plaintiffs"), including three children with an IEP, filed a Complaint against the California Department of Education ("CDE") and others in the United States District Court, Southern District alleging 16 claims and seeking declaratory and injunctive relief and a temporary restraining order prohibiting enforcement of the ban on personal belief and religious objections and the restriction of medical choice exemptions. One of the allegations contained in the Complaint was that SB 277 is unconstitutional, violates the freedom of religion, IDEA, Section 504 of the Rehabilitation Act of 1973, Americans with Disabilities Act, etc. Although there have been contradictory interpretations of whether SB 277 grants special education students with a current individualized education program ("IEP") an express exemption, Plaintiffs argued that there is such an exemption for unvaccinated IEP students.

While the Court denied the requested temporary restraining order and preliminary injunction and the Plaintiffs responded by voluntarily dismissing their law suit without prejudice to refile in late August 2016, lingering questions remain in the absence of court guidance on the matter, especially now that the court case is officially closed.

What Does this Mean for School Districts Now?
What’s clear from the statutory language insofar as students with IEPs are concerned is that some legislative effort was made to create a full day or partial day exemption of some sort for students with active IEPs, otherwise, the statutory language wouldn’t exist at all. While the firm’s advice to clients has been generally that districts should allow unvaccinated or partially vaccinated students with an IEP to attend school and access their designated supports and services as provided by the IEP, it also appears that California’s Attorney General takes a similar position, at least insofar as their court filed paperwork expressed.

We recognize that this is not the only approach and that some districts and county offices of education are requiring vaccinations for students with IEPs and without medical exemptions. This is an alternative approach and the materials we’ve seen that advocate/support this approach are well thought out. Nevertheless until a court rules on the matter or the legislation is clarified further, the question remains unanswered as do issues related to attendance exclusion that could very well implicate Section 504 and ADA lawsuits for money damages based on a finding that school districts and county offices of education engaged in deliberate indifference when denying access to school based IEP services. The "deliberate indifference" standard has gained further hold in the Ninth Circuit as a result of a significant case (A.G., et al., v. Paradise Valley Unified School District, 13-16239/13-16707 (9th Cir. Mar. 3, 2016)) which was published in March 2016 and currently the law in California.

Does any basis for exclusion exist?
Health and Safety Code Section 120370(b) states if there is good cause to believe that a child has been exposed to a disease listed in Health and Safety Code Section 120335(b)(4) and his or her documentary proof of immunization status does not show proof of immunization against that disease, that child may be temporarily excluded from that school until the local health officer is satisfied the child is no longer at risk of developing or transmitting the disease. The school district would be able to notify the parents of children attending the school that there was a child exposed to one of the diseases, without releasing any personally identifiable information of the exposed student.

Our firm will continue to watch for future litigation or guidance pertaining to immunizations and rights to exclude and keep you updated.