On Tuesday, June 30, 2015, Governor Brown signed into law a bill designed to require that California schoolchildren are fully vaccinated, regardless of their parents’ personal or religious beliefs. The bill applies to children enrolled in public or private day care, public school districts, and private schools. The law takes effect January 1, 2016, but its provisions will not be implemented until July 1, 2016.
Currently, public schools are prohibited from admitting children who are unvaccinated against specific diseases unless they are exempt for medical reasons or personal beliefs of their parents. For an exemption to take effect, parents must receive information from a health care provider about the benefits and risks of immunizations and sign an affidavit attesting to their personal beliefs. The form and affidavit provided by the California Department of Public Health may be accessed at: http://omsd.omsd.k12.ca.us/departments/lss/health/Health%20Forms/Forms/AllItems.aspx.
SB 277 largely eliminates the religious and personal beliefs exemptions. California now becomes only the third state (along with Mississippi and West Virginia) that does not allow a religious exemption. It is one of 32 states that do not allow some type of philosophic exemption. To address concerns about student’s access to education, which in California is a constitutional right, the bill exempts pupils in a home-based private school and students enrolled in an independent study program who do not receive classroom-based instruction. The new law also does not prohibit a student who qualifies for an individualized education program (“IEP”) from accessing special education and related services required by his or her IEP. It also provides a limited exception for children who, prior to January 1, 2016, submitted a valid personal belief affidavit. Those students may continue attending public or private school until, beginning July 1, 2016, they have enrolled in the next “grade span.”
Questions and Answers Regarding the New Law
Q: What is the definition of a “grade span?”
A: “Grade span” is defined as (A) birth to preschool; (B) kindergarten (including transitional kindergarten) and grades 1 through 6; and (C) grades 7 through 12. (Health and Safety Code section 120335(g).)
Q: How does SB 277 affect current students with personal belief affidavits?
A: A current student with a personal belief affidavit filed prior to January 1, 2016, will be allowed to remain enrolled in school without being fully immunized until he or she begins the next grade span. Upon beginning the next grade span, the student’s personal belief affidavit will no longer be valid and he or she will need to be fully immunized.
Q: As of July 1, 2016, may schools choose to allow students to begin the new school year even if they had not submitted a personal belief affidavit before January 1, 2016?
A: No. As of July 1, 2016, public schools must comply with the new law. Schools cannot accept personal belief affidavits filed on or after January 1, 2016.
Q: May schools choose to require parents to vaccinate their children before the law takes effect or at times other than a change in grade span even if a valid personal belief affidavit is on file?
A: Probably not. The statutory language and legislative intent likely would not favor that approach.
Q: When must students who are not exempt for health reasons be vaccinated?
A: So long as a student has a valid personal belief affidavit on file before January 1, 2016, the vaccinations must only be up-to-date when a student begins a new grade span. For example, if a fifth-grade student has a valid personal belief affidavit on file, he or she would not need to provide evidence of vaccinations until seventh grade. If a student in the seventh grade has a valid personal belief exemption on file, that student is exempt from the new vaccination requirements through the 12th grade.
Students who do not have a valid personal belief affidavit on file before January 1, 2016 must be fully vaccinated for the vaccinations required at their age level prior to beginning the new school year.
Q: What if a student with a valid personal belief affidavit on file enrolls at a new school or in a new school district? For example, what if a seventh-grade student started at a new high school in ninth grade?
A: A seventh grade student who has a personal belief affidavit on file before January 1, 2016 and who starts at a new high school in ninth grade would not be starting a new grade span and would still be covered by the personal belief affidavit through 12th grade. However, students who transfer to or start at a new school at a time that coincides with a change in grade span must be fully immunized prior to the beginning of the school year. For example, a personal belief affidavit for a sixth grade student will no longer be valid when the student transfers to a school in the seventh grade and the student will need to be fully immunized prior to admission into the seventh grade.
In regards to transferring between school districts within California, the SB 277 provides that a student who has submitted an affidavit for at a private or public elementary or secondary school, day care center, nursery school or other child care institution will be allowed to enroll in “any” private or public elementary or secondary school or other child care institution “within the state until the pupil enrolls in the next grade span.” Absent further guidance, we interpret this to mean that if a student with a personal exemption affidavit on file in one school district moves to another school district, that personal exemption affidavit will be valid in the new school district.
For example, the parents of a second grade student who attends District A filed a personal belief exemption before the student entered kindergarten back in 2013. On July 1, 2016, right before the student is supposed to enter the 4th grade, the student’s family moves to a home located in District B’s boundaries. District B must honor the student’s personal belief affidavit until he enters the 7th grade.
Q: What if a doctor provides a medical exception for a student but the school does not believe the doctor?
A: SB 277 does not provide guidance regarding challenging the validity of a licensed physician’s written statement providing that the child’s medical condition or medical circumstances are such that immunization is not considered safe. Presumably the Department of Public Health will issue guidance.
Q: Does the law affect special education rights?
A: No. SB 277 provides that the new law does not prohibit a student who qualifies for an IEP from accessing any special education and related services required by his or her IEP.
The statutory language creates a special exemption for students with IEPs. For example, a student with an IEP entering the 7th grade, who does not have a medical exemption affidavit and is not fully vaccinated after July 1, 2016, cannot be excluded from any classroom instruction if the instruction is part of his or her IEP. Thus, if that student is in a regular classroom for 90% of the school day, but in a special education classroom for the remaining 10%, the District cannot exclude the student from either classroom.
An argument can be made, however that a special exemption for students with IEPs runs counter to SB 277’s legislative intent in that it permits unvaccinated students to enter classrooms and place other students at risk. Such a risk is likely heightened when students with IEPs enter a classroom with other special needs students who may have weakened immunized systems due to their own disabilities.
The creation of an exemption for special needs students with IEPs, however, makes sense from a legal standpoint given that federal law requires school districts to provide qualified students with IEPs and does not include any immunization exemptions. The legislature likely included this exemption so that SB 277 does not conflict with federally mandated requirements.
The Department of Public Health has indicated that it will issue further guidance on SB 277. Until the Department of Public Health issues further guidance, it is our recommendation that Districts do not deny any IEP services to qualified students.
Q: What if a child has not been vaccinated and the school believes he or she has been exposed to a disease covered by the vaccination laws?
A: A school may temporarily exclude the student from school until the local health officer is satisfied that the child is no longer a risk of developing or transmitting the disease. (Health and Safety Code section 120370).
Q: Does the law affect adults? For example, can schools require teachers to be vaccinated?
A: No. The law only affects children. There are other laws that cover adults in the health care and other industries, but teachers and others who work at schools are not covered by this law. Requiring school employees to be vaccinated may expose schools to claims of invasion of privacy, disability discrimination, and other claims.
Q: Will this law be challenged?
A: Opponents of SB 277 have vowed to contest it in court and to overturn it by referendum. Absent a court order or new law, SB 277 will take effect January 1, 2016 and need to be implemented as of July 1, 2016.
SB277 amends Sections 120325, 120335, 120370, and 120375 of, and adds Section 120338 to, and repeals Section 120365 of, the Health and Safety Code.
If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, Sacramento, or San Diego office.