Accessing education, services, and supports after sb 277 Elizabeth Eubanks elizabeth@rezlawgroup.com 516 w whittier Blvd. Montebello, CA 90640 Rezlawgroup.com

What we will cover What is SB 277? What does it mean for students with IEPs? How does it interplay with FAPE? How does OAH address vaccine issues? What we won’t cover The legitimacy of vaccine laws

SB 277: What is it? Approved by the Governor June 30, 2015 (effective July 1, 2016) Codified in Health and Safety Code section 120335 Key Principles: Schools are prohibited from unconditionally admitting any student unless he/she is fully immunized against various diseases (e.g. measles, mumps, pertussis). Prior to SB 277, there was an exemption from this law for medical reasons or because of personal beliefs. SB277 eliminated the exemption from existing specified immunization requirements based upon personal beliefs Continued to allow an exception for medical reasons. Continued to exempt students in a home-based private school and students enrolled in an independent study program who do not receive classroom based instruction. Allowed pupils who, prior to January 1, 2016, had a letter/affidavit on file to be enrolled in school until the student enrolls in the next grade span. Does not prohibit a pupil who qualifies for an IEP from access any special education and related services required by his/her IEP.

Let’s Break that Down: What Vaccines are required? (1) Diphtheria. (2) Haemophilus influenzae type b. (3) Measles. (4) Mumps. (5) Pertussis (whooping cough). (6) Poliomyelitis. (7) Rubella. (8) Tetanus. (9) Hepatitis B. (10) Varicella (chickenpox). (11) Any other disease deemed appropriate by the department, taking into consideration the recommendations of the Advisory Committee on Immunization Practices of the United States Department of Health and Human Services, the American Academy of Pediatrics, and the American Academy of Family Physicians.

EXCEPTION One: Medical reasons Written statement by a licensed physician to the effect that the physical condition of the child is such, or medical circumstances relating to the child are such, that immunization is not considered safe, indicating the specific nature and probable duration of the medical condition or circumstances, including but not limited to family medical history, for which the physician does not recommend immunization.

EXCEPTION Two: Independent Studies or home school (no class instruction) “This section does not apply to a pupil in a home-based private school or a pupil who is enrolled in an independent study program…and does not receive classroom-based instruction.” “Independent Study” may include a variety of activities Education Code defines parameters of Independent Study. School District likely has policies related to Independent Study offerings. A student eligible under the IDEA may only participate in independent study pursuant to an IEP. Parents who want to "home school" their children must select and provide all curricular, instructional, and other materials. Must file a private school affidavit. What is “classroom based instruction”?

EXCEPTION Three: Letter/Affidavit Prior to January 1, 2016 A pupil who, prior to January 1, 2016, submitted a letter or affidavit on file at a private or public school (including day care, nursery school, family day care home, etc) stating beliefs opposed to immunization. Shall be allowed enrollment until the pupil enrolls in the “next grade span.” Grade Span = Birth to preschool K – 6 7 – 12

EXCEPTION four: IEP Services This section does not prohibit a pupil who qualifies for an individualized education program from accessing any special education and related services required by his or her individualized education program. Special Education = specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability. Includes: Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings Specially designed instruction = adapting the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child’s disability and to ensure access of the child to the general education curriculum. Related Services = Related services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes: speech-language pathology and audiology services psychological services physical and occupational therapy early identification and assessment of disabilities in children orientation and mobility services school health services and school nurse services parent counseling and training interpreting services recreation, including therapeutic recreation counseling services, including rehabilitation counseling medical services for diagnostic or evaluation purposes social work services in schools

What does this mean for my child with an IEP? School Districts still have to provide specially designed instruction at no cost to the parent to meet the unique needs of a student with a disability (in the classroom, in the home, in hospitals and institutions, and in other settings) School Districts still have to provide related services to students with IEPs.

Whitlow v. California 203 F. Supp. 3d 1079 Parents brought action against CA challenging the Bill. Does not challenge the State’s right to compel vaccination of its schoolchildren (which had been well decided for “more than 100 years”). Rather, challenges the State’s decision to eliminate the personal belief exemption. The Court analyzes an argument made by Plaintiffs that the Bill violated the equal protection clause (treats children with PBE, IEPs, and 504 plans differently), “. . . The IDEA is designed to provide disabled students with access to special education and related services in schools…. The exemption for students with IEPs ensures that right of access and furthers the State’s legitimate interest in providing special education and related services to those students.” “If those children are covered by the IDEA, they are exempt from vaccination.”

Student v. long beach unified school District & Marshall academy of the arts (oah No. 2017090407) Student has autism Eligible for special education Attended school at Marshall Academy of the Arts May 2017 IEP: Placement in general education classroom Specialized academic instruction for 48 minutes, five times each week 480 minutes per month consultation, supervision, and direct behavioral intervention services. September 2017: Student files a request for due process because LBUSD threatened to remove him from Marshall because he was not vaccinated. LBUSD offered him home instruction.

LBUSD Continued OAH: Looked at legislative intent: “special education students must have access to services” “A plain reading of subdivision (h) reveals that a school district is obligated to provide any student with an IEP, placement, and services as specified in the IEP, and this, in effect creates an exemption from vaccination for these children.” Student’s IEP requires placement in a general education environment, with specified behavior intervention services. Home instruction cannot replace this placement and services. LBUSD must return Student to Marshall with the placement and services specified in his IEP.

In Summary: Questions to ask Do you have a medical exemption? Is it appropriate and/or desirable for your child to be educated in independent studies or home schooled? Watch: Red Flag warning. Did you have an affidavit on file prior to January 2016? What does the IEP require for special education and related services?

Questions?