Exemptions for Student Immunizations – Where has the Line Been Drawn Beth L. Sims, Esq., Esq., Partner, Shaw, Perelson, May & Lambert LLP Kathy A. Ahearn, Esq., Partner, Guercio & Guercio, LLP J ay Worona, Esq., Deputy Executive Director & General Counsel, New York State School Boards Association 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 1 Recent Change in the Law On June 13, 2019, Governor Andrew M. Cuomo signed Chapter 35 of the Laws of 2019 which repealed Subdivision nine of § 2164 of the Public Health Law and eliminated the religious exemption to school immunization requirements in New York State. 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 2 1
Guidance Documents Issued from State Four joint guidance documents have been issued to clarify school districts’ obligations under the new law with the latest being issued on October 4, 2019 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 3 Medical Exemption Still Valid Public Health Law § 2164, as amended by Chapter 35 of the Laws of 2019, now only provides one exemption to immunization requirements; i.e., “Medical Exemption” where a licensed physician certifies that immunization may be detrimental to a child’s health. 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 4 2
Generally, Parents Must Show Proof of Immunization within 14 days • The new law prohibits a school from permitting the attendance of a child in a school, in excess of 14 days without sufficient evidence. • This 14 day period may be extended to not more than 30 days where the student is transferring from out of state or from another country and can show a good faith effort to get the necessary evidence. • For the 2019-2020 school year only where the parent, guardian or any other person in parental relationship can demonstrate that a child has received the first age-appropriate dose in each immunization series and that they have age-appropriate scheduled appointments for follow-up doses to complete the immunization series in accordance with the CDC’s Advisory Committee on Immunization Practices Recommended Immunization (ACIP) Schedules for Persons Aged 0 through 18. 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 5 Immunization is a Condition of School Attendance • Public Health Law § 2164 makes immunization a condition of school attendance and defines a “school” as any public, private or parochial child caring center, day nursery, day care agency, nursery school, kindergarten, elementary, intermediate or secondary school . • Thus, for unimmunized students, who do not have a valid medical exemption to immunization, generally the only option for school attendance in New York State is to Home School the child. • Applicable NYS Public Health Law defines a “child” as any person between the ages of 2 months and 18 years of age. Persons over age 18 are no longer subject to the immunization requirements. • Thus, students over age 18 who have not received a high school diploma must be permitted to reenroll in school without immunization compliance. 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 6 3
Applicability of Compulsory Education Law • Generally, students who are of compulsory education age in New York State; i.e., between the ages of 6 and the end of the school year in which they turn 16 must be in attendance upon instruction. • Children whose parents fail to ensure that they are educated are considered to be “neglected” and such parents may be held liable for “Educational Neglect” if certain conditions are met. 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 7 Activities and Services to which Unimmunized Students May be Entitled The new legislation does not apply to attendance at activities on school property that are open to the general public such as Board meetings, sporting events, school plays, SAT preparation/administration. 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 8 4
Activities and Services to which Unimmunized Students May be Entitled STUDENTS WITH DISABILITIES may be entitled to special education services under the dual enrollment law if a request is made by June 1 st , but for 2019-20 school year, the State encouraged school districts to honor parent requests for special education services for homeschooled children who may be impacted by the repeal of religious exemptions to vaccination requirements. 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 9 Students with Disabilities • Home schooled SWDs are entitled to receive special education services in accordance with an individualized education services program (IESP) developed by the CSE of the student’s school district of residence. This IESP should be aimed at providing the special education supports needed to support a student in a home schooling program. • To be eligible to receive an IESP, a homeschooled student must have an individualized home instruction plan that the superintendent of schools of the school district in which the homeschool is located has determined to be in compliance with § 100.10 of the Regulations of the Commissioner of Education. • A CSE recommends and a board of education arranges for the location where special education services will be made available to homeschooled students, which could include delivery of services by school staff or contractors in the child’s home, or at another location (e.g. therapy provider’s office; or public gathering sites that are open and accessible to the general public, such as community centers). 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 10 5
Students with Disabilities • If IESP special education services are recommended to be provided at a location other than the student’s home the school district would remain responsible for providing transportation. • Students who have not been immunized consistent with the requirements of Public Health Law §2164 and do not have a valid medical exemption may not be transported on a school bus with other students . – Thus individual transportation would need to be offered. 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 11 Students with Disabilities • Parents of homeschooled students with disabilities who disagree with the IESP recommendation of the CSE can request an impartial hearing. • Parent can request that only specific services be provided (e.g., speech therapy). The school district should maintain documentation of the parent’s written request. 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 12 6
Students with Disabilities • There are labor issues which should be considered and discussed with legal counsel; i.e. immunocompromised staff and staff with immunocompromised family members and those who may be in contact with immunocompromised in other portions of their work duties. • Notice of potential hazard in assignment; Staff can voluntarily share information 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 13 Conclusion School districts throughout New York State were left with little notice and the large task of auditing student immunization compliance in an effort to educate families regarding the need to ensure immunization compliance or face school exclusion upon the commencement of the 2019-2020 school year. 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 14 7
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