Etzel Rubio at Berkeley Pediatrics fills a syringe in preparation to administer a vaccine. (Jeremy Raff/KQED)
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.
Under the law, which goes into effect on July 1, students must be vaccinated before attending school, unless they obtain a medical exemption to the required vaccinations, or enroll in homeschooling or independent study. The law abolished the "personal belief exemption" which allowed parents to refuse to vaccinate their children -- but still send them to public or private school.
“The law doesn’t say (special education students) 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 these students, “they could have put an exemption in there,” he said.
Yet, many parents who opposed the new vaccination law, known as Senate Bill 277, believed that special education students would be exempt. That's 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 School and College Legal Services of California, 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, 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.